On Funding Digital Public Works
Contents* introduction
* righteous indignation on proprietary content from public funds
* post-scarcity economics and exponential growth
* post-scarcity information economics and non-profits
* scarcity still exists and may recur
* how copyright ownership corrupts the non-profit mission
* more subtle pollution problems
* is it "self-dealing" to exchange public property for salary?
* if you can't beat them, change them (and maybe that's best)
* how new alternatives can work
* why "new" alternatives need to work
* examples of fine-grained cooperation in action
* how things go wrong with current practice
* the tragedy of the New Alchemy Institute
* proprietary vs. free content producer example
* even designs for simple health appliances are not free
* digital public works are not physical public works
* patents, blueprints, and journal articles are "leftovers" today===
* what have funding policies in automotive intelligence wrought?
* the cycle of failure
* encouraging successful collaboration
* a sure thing
* please keep charitable content free; ask peers to do likewise
introduction
This was posted to the Virgle list, and includes stuff emailed years earlier.
http://groups.google.com/group/virgle/msg/de1a99ede7e0e615?hl=en
More dusty stuff I wrote forwarded below -- made public now here mainly for future reference.
It includes idea on the legal structure of a non-profit which is chartered to only handle free works and after that the essay "On funding digital public works".
A shorter version of that essay is here:
http://groups.google.com/group/openvirgle/browse_thread/thread/b92804afacd0345b
This is all also indirect commentary on:
"The Adventure of Many Lifetimes: Open Source Planet"
http://www.google.com/virgle/opensource.html
"Our civilization's most valuable export, meanwhile, will be intellectual
property. The problems our Pioneers solve in the course of their
world-building enterprise will represent an engine of invention in dozens of
lucrative areas, from biotechnology to geology, physics to agriculture. We
see the community's system of intellectual property development evolving
from a community open source model to commercial open source (or perhaps we
mean that the other way around?). ... How should an open source planetary
development project interact with existing companies and markets? ... At
what point should Martian property move from being distributed solely among
Pioneers and open source investors to being traded to outside investors?"
So, when you get "fired" at Virgle -- it's out the airlock without a helmet? :-)
Or access to Virgle know-how and tools you helped build, which would be the same thing in the long run?
What kind of society would that be? :-(
We need a "post-scarcity" paradigm all the way through IMHO.
And advanced automation
http://www.islandone.org/MMSG/aasm/
plus social change ideas:
http://www.whywork.org/rethinking/whywork/abolition.html
http://en.wikipedia.org/wiki/The_Triple_Revolution
http://www.educationanddemocracy.org/FSCfiles/C_CC2a_TripleRevolution.htm
empower us to make a prosperous society that works for everyone on Earth or
Mars or the Asteroids or Alpha Centauri or wherever.
A sci-fi novel on that theme:
_Voyage from Yesteryear_ by the author James P. Hogan
http://en.wikipedia.org/wiki/Voyage_from_Yesteryear
Though in practice IMHO there will be more of a mix of meshwork and
hierarchy than in _Voyage from Yesteryear_; see Manuel De Landa:
"MESHWORKS, HIERARCHIES AND INTERFACES"
http://www.t0.or.at/delanda/meshwork.htm
"Indeed, one must resist the temptation to make hierarchies into villains
and meshworks into heroes, not only because, as I said, they are constantly
turning into one another, but because in real life we find only mixtures and
hybrids, and the properties of these cannot be established through theory
alone but demand concrete experimentation."
IMHO the Earth, Mars, and ultimately the Universe will be better off if Billionaires like Virgin founder Richard Branson and Google co-founders Larry Page and Sergey Brin can learn to see Virgle-related-activities etc. as a hard fun *hobby* and not a serious *business* venture. :-)
See:
"Hard Fun" By Seymour Papert
http://www.papert.org/articles/HardFun.html
See also:
"Professional amateurs"
http://en.wikipedia.org/wiki/Professional_amateurs
"Pro-Ams occur in populations that have more leisure time and live longer,
allowing the pursuit of hobbies and interests at a professional level. For
example, authors of encyclopedia articles have traditionally been paid
professionals, but recently amateurs have entered the field, participating
in projects such as Wikipedia. Other Pro-Am fields include astronomy,
activism, surfing, software development, education, and music production and
distribution. Open source/Free Software such as GNU/Linux was developed by
paid professionals at companies such as Red Hat, HP and IBM together with
Pro-Ams, and has become a major competitor to Microsoft."
Even if, like with, say, RedHat or Google, for a time,
http://www.google.com/search?hl=en&q=end+of+capitalism
may build businesses (or more: http://www.google-watch.org/gpower.html ) on,
say, GNU/Linux or at the edges of the Pro-Am revolution.
And I know my writing and learning on freedom (and responsibility :-)
"Freedom & Responsibility"
"Public Domain Stories: On funding digital public works"
http://www.existential-therapy.com/Special_Topics/Freedom_and_Responsibility.htm
would not be possible without something like Google. So there is positive
feedback. :-)
Things are slowly changing from when I first wrote this stuff below.
Wikipedia is a big change.
And here is a good example of a non-profit doing lots of things right IMHO:
http://www.concord.org/
"The Concord Consortium is a nonprofit educational research and development
organization based in Concord, Massachusetts. We create interactive
materials that exploit the power of information technologies. Our primary
goal in all our work is digital equity � improving learning opportunities
for all students."
http://www.concord.org/resources/browse/
"We produce a large amount of high-quality educational software that is
offered free of charge. Almost all of our software is open-sourced so you
can adapt it to your own needs or use it as the basis for your own software
development efforts."
Maybe "OpenVirgle" or whatever the name will be another:
http://groups.google.com/group/openvirgle
http://code.google.com/p/openvirgle/
But these trends will continue to play out :-) one place or another.
--Paul Fernhout
"Public Domain Stories: On funding digital public works" and "On funding digital public works" forwarded below:
-------- Original Message --------
Subject: Public Domain Stories: On funding digital public works
Date: Fri, 06 Feb 2004 12:49:00 -0500
From: Paul D. Fernhout
On your site I saw:
One thing I found in talking to a non-profit lawyer about forming a
non-profit which is chartered to only handle free works is that it
pretty much can't be done under US law. My reason for wanting to do this
was to ensure any funds or effort or patents and copyrights (such as at:
For reference here was what I had thought of putting in the articles of
incorporation or bylaws, but it now seems must be crafted into contracts
somehow:
"The following restrictions on the activities of the corporation
are intended to ensure free licensing of the results of all the
Corporation's efforts. "Free" as used in this document is intended to
mean "free as in freedom" in the same way as the Free Software
Foundation's (FSF's) current or future similar definition of "free"
I think that is the minimum sort of guarantee donors should expect
before donating things to organizations that purport to use, distribute,
and create "free" works.
For a desired project to create a free and open repository of
information about how to make things, we also face apparently
substantial legal risk from the DMCA and other laws which can make us
liable for offensive content others post -- which has had a chilling
effect on that project.
I'm also forwarding this essay I sent to the Markle Foundation back in
2001 in response to a request on their site for comments. I also have a
slightly updated shorter version I created recently which is less whiny
:-) but it leaves out some of the personal aspects, and that seems to be
exactly what you want. [some snipped]
[A shorter version of that essay is here:
I also have another broader related essay I can send about how to save
significant money in many sectors of the US economy by non-profits and
others adopting and promulgating a post-scarcity worldview.
[Now at: http://www.kurtz-fernhout.com/oscomak/AchievingAStarTrekSociety.html
]
--Paul Fernhout
"On funding digital public works" forwarded below:
-------- Original Message --------
[snipped]
Subject: On funding digital public works
Date: Tue, 12 Jun 2001 12:51:10 -0400
From: Paul Fernhout
Zoë Baird, President
Markle Foundation
Zoë-
Here is a topic to consider for inclusion in the Markle Foundation's
Consider this email a contribution towards a "white paper" on why
foundations and government agencies should require any digital public
works they fund to be communicated to the public under free or open
licenses. I apologize I have not had the time yet to make it shorter.
As a software developer and content creator, I find it continually
frustrating to visit web sites of projects funded directly or
indirectly by government agencies or foundations, only to discover I
can't easily improve on those projects because of licensing restrictions
both on redistribution and on making derived works of their content and
software.
Consider this license fragment from a project supported in 1993 as a PRI
by the Markle Foundation:
The non-profit collaborative communications ecosystem is polluted with
endless anti-collaborative restrictive terms of use for charitably
funded materials (both content and software) produced by a wide range of
public organizations. These restrictions are in effect acting like
Unfortunately, the situation is even worse than that, because even
without a copyright notice or license, the default under the law
For example, consider this excellent essay you wrote on "Improving Life
in the Information Age" as a president's letter on the Markle site:
I apologize if that example is slightly embarrassing but it nonetheless
shows the exact point I wish to raise in a Markle Foundation specific
way -- how the non-profit sector could make better use of free or open
licensing to communicate better. You're in good company, as most
non-profit materials on the internet also lack explicit licenses for
redistribution or any sort of modification. The bottom line is that the
real problem won't be fixed by your putting a license at the bottom of
your next president's letter or modifying that previous one. It will
only be fixed when all non-profits everywhere on a daily basis take this
licensing issue into account in all their communications. To avoid such
irony myself, I added a license allowing redistribution at the end of
this email, although, frankly, I myself don't normally do so with most
letters I write.
I would prefer to use tools and protocols that made such licensing
issues easier to take care of without thinking much about them all the
time (if such tools or protocols existed, but in general they don't
yet). The commercially dominated world (including to an extent W3C)
spends most of its time thinking about how to restrict freedom to
communicate, not how to ensure such freedom, which is obvious
from the titles and author affiliations (ironically under "company") of
most of the position papers here:
This long (freely redistributable) email essay is born in part out of
that repeated frustration of a desire to archive, communicate, and, in
some cases, improve public content. As someone who (as part of a
husband/wife team) has effectively given to the public a six-person year
effort funded out of our own pockets (an educational garden simulator
with source under the GPL),
I have also CC'd this to some groups or people I mention as doing a good
job who have an interest in free or open content -- and that should not
be taken to mean I am in any way formally connected with those people or
speak for them or that they endorse any of my comments in any way.
To understand my larger point, one must first understand where the
physical technological capacity behind the information age is heading
over the next thirty or so years.
Perhaps allowing content producing 501(c)3 non-profits to tightly
control their copyrights made sense in the past. Driven by cuts in much
non-profit funding in the 1980s and early 1990s, many non-profits moved
to funding models requiring more entrepreneurship. For many non-profits,
that has meant selling copyrighted materials, and they effectively
became no different than commercial publishers -- except for receiving a
charitable subsidy that perhaps allows break-even cost production for
smaller audiences otherwise underserved by the the mainstream for-profit
press. Acting as subsidized presses has been an important mission for
non-profits, and both Cynthia and I have helped with it. We assisted
NOFA-NJ in producing two versions of the New Jersey Organic Market
Directory -- which was subsidized by among others the Geraldine R. Dodge
Foundation.
But, I would argue, it no longer makes sense to enable non-profits to
function mainly as subsidized publishers operating in an otherwise
conventional for-profit way through selling copyrighted material.
Assuming subsidized publishing made sense at some point, what has
changed recently? Widespread internet use is one obvious thing. In
general, the bigger picture is that a more cooperative "post-scarcity"
Exponential trends aren't always obvious. Most people fail to comprehend
that computers will likely be about a million times faster for the same
cost in twenty to thirty years simply by doubling in price/performance
every year or two (assuming our society doesn't meet with another
disaster like war or plague before then). For example, almost everyone I
ask about how much faster they think computers will be in 10 years says
about 10 to 20 times faster, when they are more likely to be 100 to 1000
times faster. People all laugh in disbelief when I say I expect them to
be a million times faster in twenty to thirty years based on what has
already happened in the industry compared to thirty years ago.
Yet even conservative computer engineers say Moore's law will hold for
at least ten years without many major changes in how things are done.
Just one thing possible with today's computer technology is cars that
drive themselves. I was in one around 1986 (ALVAN/NAVLAB at CMU)
What will computers 1,000 or 1,000,000 times faster make possible?
Numerous people including Kurzweil speculate on this.
Here is another person's positive spin (Hans Moravec):
There is still an opportunity to do what we can to make something good
happen out of all this -- to help shape how post-scarcity society
develops. Non-profits could have a major role to play in shaping that
society humanely, rather than just watching a society evolve that is the
ultimate conclusion of a competitive arms race among capitalist
organizations creating ever increasing technological capacity
of a certain amoral type to increase profits and reduce costs.
If one doubts computers can become a million-fold faster for the same
price, consider that computers have already improved a million fold or
so in price/performance over the previous thirty or so years as a
historical exponential fact.
Many scarcity-based economic assumptions about information production
and distribution may cease to make sense in many arenas, as society
continues to absorb the increased computing and communications capacity.
Many scarcity-based assumptions already don't make sense with today's
level of computing power and bandwidth. Similar changes are happening in
other non-computer fields as well.
Or to look at it another way, Buckminster Fuller's "Comprehensive
Anticipatory Design Science" is starting to flower despite inattention
Even in a "post-scarcity" or "gift" economy, some things remain scarce,
like human attention or trust. This new economy is driven in part by
peer status, which does have indirect physical, economic, and other
benefits.
Nowhere is a post-scarcity economy more visible today than with content
on the internet. However, does the funding plan for most digital public
works made by non-profits incorporate a post-scarcity perspective?
There are a lot of non-profit projects being funded out there
(especially educational and digital library ones) which have a component
of attempting to charge for access to the results of charitably funded
work as part of their business plan. Some completely restrict access
(and redistribution) to a local paying community. In fact, most
government funding agencies and foundations encourage such restrictions,
on the (often flawed) assumption that such restrictions will make the
project self-sustaining financially. Rather than single out another
example, let me point as a contrast to a foundation:
An outdated scarcity perspective in the non-profit community is still
manifesting itself, however. There remains a continued emphasis on
charitable projects which include plans for restricting access to the
resulting publicly funded digital works now, in the hopes of creating
revenue streams later. The funded organization usually proposes
continuing to improve the work itself under its solitary control using
money derived from selling licenses to the work. Contrast this with, for
example, the post-scarcity development of the GNU/Linux operating
system, made by thousands of volunteers contributing improvements to an
initial base contributed by Linus Torvalds and the Free Software
Foundation (FSF) GNU project.
The old scarcity criterion towards selecting what makes a viable project
(based on a recurring royalty stream for static content) is completely
at odds with the new post-scarcity model (based more on streams of
attention, status, service, and customization). The new collaborative
development process made possible by the internet (resulting in a work
made by sharing licenses to copyrights made by a distributed network of
authors funded indirectly by other means) is fundamentally different
than the old process (resulting in a work made by centralized copyright
ownership with a development process funded by selling licenses to the
result).
Certainly scarcity still exists in the world since 24,000 people starve
to death daily
Scarcity to the point of starvation has a personal meaning to me as one
of my relatives (a great step-uncle) starved to death during World War
II in the Netherlands (during the "hunger winter") when my mother was a
teenager. As a result, my entire family has been and still is affected
by my mother's reactive attitude towards food derived from living
through that period of scarcity and watching her step-uncle die.
However, these deaths are (and were) primarily for political, not
technological, reasons.
I would argue that the copyright status of non-profit works (including
ironically UN documents about agricultural techniques) is part of this
political problem. Still, like with my mother, anyone who has lived
through extreme scarcity may be forever changed and have difficulty
adapting to new conditions. This is a topic James P. Hogan goes into in
detail in "Voyage from Yesteryear" as a scarcity culture tries to
conquer a post-scarcity culture.
Technology can help alleviate some political problems by helping
currently limited charitable resources to do more. That is one reason we
wrote our garden simulator -- so people could more easily learn to be
self-reliant in growing their own food. But what is the point in making
such a simulator if people who need it can't get it? That's one reason
we made it free of cost. But since others could potentially make it
better than we could, that is why we made it free in the sense of
allowing derived works under the GPL license.
Strangely enough, as a for-profit company, some of our biggest
competitors are non-profits including groups with much larger staffs
supported through universities and research institutes and funded by
grants -- who sell their software at higher prices than ours. Frankly,
we have a difficult time competing in this arena, but we also question
to what extent their funding derives from software revenues.
Beyond the obvious financial advantages such non-profits have, we are
also on unfair ground. Such non-profits can see our privately funded
core technology platform, since our two non-free products draw on the
public code base for our garden simulator. However, we can't see how
their publicly funded systems work because they generally keep them
closed and proprietary.
For example, there is on sale a $60 a copy product similar in some ways
to our garden simulator but written by a non-profit group years after
ours (apparently with NASA grant funding):
One "non-profit" project (funded in part by the German government and
sheltered in a large research institute) even tried to steal our
PlantStudio trademark and related good will last year, registering
plantstudio.com and pointing it at their site. That created a legal
tussle that has already taken almost half of the paltry $8000 or so
gross direct revenue from our products (the total over the last three or
so years). The problem is still not completely resolved almost a year
later and has caused us quite a bit of distress affecting our other
work. Pessimistically, such distress could have been part of their
intent to disable a major competitor. Or maybe optimistically, they
thought we were deserving of abuse both because we were "for-profit" and
[price comparison deleted due to German law prohibiting it]. In any
case, given that our net revenues for doing our educational projects
including opportunity cost and interest would easily be minus one
million dollars, this situation adds insult to (financial) injury.
[And yes, it was foolish of us in hindsight to try to save money by not
registering plantstudio.com ourselves earlier.]
This isn't a plea to subsidize our for-profit business -- but rather to
say something is wrong both in how we are funding our own for-profit
educational development work as "right livelihood" as well as in how
non-profits in the same arenas are funding their work.
Conflicts between for-profit and non-profit work might be lessened if
all non-profit content development work was put in the public domain or
under some sort of free license (copylefted or not),
This is, however, most definitely a plea to think about how the tightly
controlled ownership of copyrights can be corrupting people and
organizations in the non-profit world -- because we have seen that first
hand to our dismay. Please think deeply about the difference between
Similarly, the common notion of "matching funds" breaks down when
applied to whether a product is free (as in the French "libre" sense
[think free speech], not necessarily "gratuit" sense [think free beer])
In both cases, the "free" funds from charity are contaminated by the
This contamination also happens more subtly than one might think. For
example, every Microsoft Word document or Adobe Acrobat document a
non-profit group puts out also reinforces proprietary monopolies. Word
and Acrobat are both "standards" but they are not in practice "open" or
One school of thought (mentioned recently by Alan Kay) maintains the
only true standards are ones defined by freely available reference
implementations, since any document with more than five lines will
contain ambiguities. This argues for only using standards defined by a
free implementation (as opposed to a proprietary one that is later
documented).
The fact that non-profits, foundations, and government agencies
distribute or request such proprietary document formats as primary
sources (as opposed to HTML or XML or other alternatives) shows how
deeply ingrained the proprietary data problem is. It is as fish to water
-- most don't notice it, or if they do, they bow to necessity without
even an apology.
Such policies can have direct negative impacts. For example, I know of
one group who missed an annual application for a NASA grant because the
applicant found out at the last minute their non-Adobe PDF file
generating process didn't work as expected, and plain text was not
acceptable. Yes, they cut things too close, but why add a hurdle
requiring purchasing a proprietary program to get a public money?
Consider this way of looking at the situation. A 501(c)3 non-profit
creates a digital work which is potentially of great value to the public
and of great value to others who would build on that product. They could
put it on the internet at basically zero cost and let everyone have it
effectively for free. Or instead, they could restrict access to that
work to create an artificial scarcity by requiring people to pay for
licenses before accessing the content or making derived works.
If they do the latter and require money for access, the non-profit can
perhaps create revenue to pay the employees of the non-profit. But
since the staff probably participate in the decision making about such
licensing (granted, under a board who may be all volunteer), isn't that
latter choice still in a way really a form of "self-dealing" -- taking
public property (the content) and using it for private gain? From that
point of view, perhaps restricting access is not even legal?
Self-dealing might be clearer if the non-profit just got a grant, made
the product, and then directly sold the work for a million dollars to
Microsoft and put the money directly in the staff's pockets (who are
also sometimes board members). Certainly if it was a piece of land being
sold such a transaction might put people in jail. But because the
content or software sales are small and generally to their mission's
audience they are somehow deemed OK. The trademark infringing non-profit
sheltered project I mention above is as I see it in large part just a
way to convert some government supported PhD thesis work and ongoing R&D
grants into ready cash for the developers. Such "spin-offs" are actually
encouraged by most funders. And frankly if that group eventually sells
their software to a movie company, say, for a million dollars, who will
really bat an eyebrow or complain? (They already probably get most of
their revenue from similar sales anyway -- but just one copy at a time.)
But how is this really different from the self-dealing of just selling
charitably funded software directly to Microsoft and distributing a lump
sum? Just because "art" is somehow involved, does this make everything
all right? To be clear, I am not concerned that the developers get paid
well for their work and based on technical accomplishments they probably
deserve that (even if we do compete for funds in a way). What I am
concerned about is the way that the proprietary process happens such
that the public (including me) never gets full access to the results of
the publicly funded work (other than a few publications without
substantial source).
I've restricted this to talking about copyrights, but patents only make
this situation worse. Right now, a patent on MP3 technology held by a
non-profit (the Fraunhofer-Gesellschaft, commissioned and funded by the
Federal and L�nder governments)
Both these examples are by coincidence from Germany, but one could find
similar examples in the United States. Likewise, Germany has many
outstanding developers of free and open software,
I admit this self-dealing analogy may sound at first far fetched, but
perhaps that is another sign of how bad the situation has become as old
economic models of paper-based content distribution break down in the
internet age.
Note: this is not to argue non-profits should not be able to assert
One might be thinking right now that the interests of this husband/wife
team I am a part of might be better served by joining a non-profit
together or individually instead of running a money-losing for-profit
educational simulation company on their own, subsidized by unrelated
contracting work. That insight might well be right. We've thought about
that as well as forming our own non-profit. Since all the advice we have
read suggests it is better to join an existing non-profit if possible
for various reasons instead of starting a new one, consider a few
attempts we have made in this direction, since our experiences may help
illuminate the current state of copyright ownership paradigm in the
non-profit sector.
So, over a year ago I went to a local mid-sized non-profit organization
with over a hundred staff members that does various types of support for
local school districts. It's a great group of people with an innovative
R&D department (rare for such organizations). I even got offered a job
at a fairly good non-profit salary (around $65K + great benefits). Why
did I not accept?
One big reason (not the only one) was that when I presented some of my
ideas for new educational content, the immediate reaction from the
director was, "We can turn this into an offering for schools and sell it
on the web across the country!" Most people might have been elated. I
was horrified.
The director was totally justified in what he said from his point of
view, and that approach fit right into business-as-usual for them. While
they do sell services (like web hosting) to schools, they also sell
content, like teacher training materials. But it made me realize that it
is the perception of content scarcity and the related mythology about
how public digital works should be funded by society that most needs to
change. Frankly, if there had not been other issues as well, I might
have decided to wage that fight in that one organization. (And even in
that conversation, I tried to present alternatives.) Still, I think that
is the reception I would get right now at most non-profits.
I also interviewed at a foundation for an MIS manager position. Even
though this foundation wanted to foster grassroots change to a more open
and just society, they could not see anything inconsistent, for example,
with using Microsoft Exchange on NT as their main mail platform (instead
of Linux). I didn't get that job, probably in part by being annoying
about Linux and Free/Open-source Software.
Not to be dissuaded too easily, I recently casually talked with a friend
in the MIS department of a major well funded (non-profit) university
about their copyright policies. He said essentially that university
policy was that faculty controlled their copyrights, but staff gave
copyrights to the university. He also mentioned a very complex set of
problems has started coming up. Faculty sometimes collaborate on content
and then one faculty goes to another university. Can the university
still make the content available? What if the faculty member continues
to collaborate from their new university? What if staff was involved in
facilitating the collaboration and content production, as they almost
always are? In short, collaboration at this university is on rocky legal
ground. Would that be a situation I wanted to walk into as either a
staff member or faculty? Would it be likely one I could fix against
entrenched habits and perceived faculty rights?
Believe it or not, one of the reasons we remain a for-profit sole
proprietorship is the complexity of non-profit law as it relates to
copyrights and self dealing. For example, we contacted the Tides Center
Aside from liability reasons, one reason to be a 501(c)3 non-profit is
to get grants. But would such grants be available given how grantors may
still look at things? For example, when we approached the NSF several
years ago for funding for an open garden simulator available to everyone
that was collaboratively extended (before we decided to just go ahead
and release it with source anyway), the response was, "we don't see why
you just don't sell it."
There are obviously a variety of non-profits and foundations, some of
which may play by different rules. We might well still find local ones
that match our interests, are improvable with a reasonable effort, or
are willing to take legal risks compatible with their missions.
But the deeper issue in the context of the Markle Foundation's "Digital
Opportunity Task Force" effort is that, in my opinion, in a
post-scarcity internet economy I should not even have to ask a 501(C)3
non-profit if they will let me give away digital works I create in their
employ, or worry that they might abuse such works in a proprietary way.
Obviously any approach to content generation takes money too at the
moment. Content developers usually need to buy food and pay rent, and
that money comes from somewhere, often either from a client who needs
related services, from other unrelated paying work (say, carpentry), or
from parents, relatives, or credit cards. Coordinating volunteer
contributions can be hard and thankless work, akin to editing a book,
for which it can be hard to find a long-term volunteer, so such work
often goes undone. (RedHat for example does some of this as a company.)
However the concept of "right livelihood" implies there might be ways
for a developer working in the public interest to get paid. For the next
decade or two, grants can make a big difference for funding digital
public works made by non-profit processes, especially domain specific
applications or content which don't attract as much developer interest
as programming languages, operating systems, and commonly used
utilities.
There are also some longer term ideas in the works from various sources
for voluntary payment systems that are so easy to use that people can
spontaneously pay a dollar or so when enjoying a song or even a program.
This is different in several respects from "shareware". For example, we
use a non-voluntary "shareware" payment system built into two of our
products (PlantStudio and StoryHarp software). However, as a consequence
of needing to embed such a non-voluntary system we have not released the
source for those or allowed making derived works. We would prefer to use
a ubiquitous voluntary payment system or fund those works entirely by
other means and make them completely free. We don't like the idea of
making people feel bad about themselves or that they are criminals when
for whatever reasons they don't pay for using those two products. Since
cracked versions of both programs are floating around the net (we take
it as a mark of quality :-) these restrictions, like cheap locks, only
keep honest people honest anyway. Unfortunately, these restrictions also
create criminals out of people who don't respect them, and thus these
two works are ethically tainted because of that. If it is wrong to
commit a crime, isn't it just as wrong to create an avoidable situation
that makes someone into a criminal? For the $8000 or so we have earned
from a few hundred very honest people, we may well have created
thousands or tens of thousands of criminals. That is a real social
Assuming people need to make a living, how can people who deal in public
domain works get paid? One may object that such a "new" scheme of
sharing non-proprietary knowledge created by charitable means can never
work economically. However, there are perfectly capitalistic examples
where it has worked already.
The "new" model of making money with public domain content is actually
an old one related to guilds. Doctors and lawyers both make excellent
livings working with a large body of public domain knowledge,
interpreting it, customizing it, and applying it to client's specific
situations. Both doctors and lawyers create new knowledge that is
effectively put into the public domain in the form of medical journal
articles or court proceedings. While the average person can be their own
doctor or lawyer to an extent, there is so much to know including
certain ways of reasoning that in practice one is usually better off
getting some assistance from a professional (as well as getting some
self-education to work well with that professional) than trying to go it
alone.
Many times grants help researchers create more information for the
medical or legal public domain. But those grants don't corrupt the
process, because the results are essentially available to all
practitioners on an equal basis.
There are some medical grants that produce drug or plant patents that
probably are corrupting, but that is another issue. Patents are an
example when science (which thrives on reference chains of journal
articles) crosses over into technology (which thrives on incrementally
improved artifacts -- and artifacts can be copyrighted or patented to
prevent others from using them for a time).
To help a lawyer to understand free or open source software for example,
just ask her or him to think about it in terms of the law itself -- from
court proceedings to legislative records. While lawyers may pay for a
service like Westlaw for convenience or practical necessity,
Surely nobody would suggest the world was better off in the days of
18th-century England when a medical student had to crawl on top of a
roof and look in from a skylight to find out the proprietary technique
used by one group of secretive obstetricians to have a lower rate of
infant and maternal mortality than their competitors:
This guild-like process has already started with public software such as
GNU/Linux. Competent GNU/Linux system configuration experts are now in
high demand and can get good wages for dealing in purely free software.
One of the things that helps prove competence in this "guild" is having
contributed to the GNU/Linux kernel.
[Note that historically guilds often kept their methods secret from
outsiders; I'm not advocating that here.]
How different is the basic issue in the secretive obstetricians example
above from when publicly funded non-profits put "no trespassing" signs
around their copyrighted works, preventing anyone else from improving on
them, or benefiting from them without paying a toll to the non-profit
itself?
Toll collecting imposes other external costs. Just yesterday I heard a
collision happen between a few cars two lanes over while driving at the
Whitestone bridge's toll plaza -- another hidden cost of tolls. People
could have died, say if an airbag killed a child improperly secured in a
front seat. Likewise, I had my license plate scanned and checked as I
paid a toll leaving an airport parking field (according to the automated
display), resulting in an extra "privacy" toll not recorded on the
receipt.
The tolls imposed by non-profits for licensing their copyrights can have
similar negative external costs. Such tolls can contribute to causing
people in developing nations to die because of lack of access to how-to
information on agriculture. Such tolls can also contribute to creating a
closed bureaucratic Orwellian society without privacy where every
viewing of information is monitored so it can be billed (consider
Acrobat Reader 5 which includes technology to scan your computer and
communicate the results across the internet -- pick "Edit | DocBox |
Preferences" to see the InterTrust warning and license). As mentioned
earlier, such restrictions can also (through temptation) create
criminals where none might have existed.
Frankly, if the non-profit world of copyright creation cannot provide a
model by slowly moving to a post-scarcity economic structure, when such
creation is already funded in large part by charity, how can the
for-profit world survive the transition without complete and painful
chaos?
Naturally, many non-profits like soup kitchens or Habitat for Humanity
are already working on a service basis, and if they collect fees for
services rendered, I'm not against that. I'm talking specifically about
copyright and patent work here, which is some of the type of work Markle
funds.
How could post-scarcity economics be reflected in new ways of doing
things by the non-profit sector?
The current growth level of the internet makes possible fine-grained
voluntary collaboration on an unprecedented scale to cooperatively
develop enormous creative works, exemplified by these three
collaboratively developed sites:
Post-scarcity collaboration has also long been shown by many of the
internet newsgroups, which include discussions and information on most
topics of human interest, somewhat archived and indexed here:
In short, non-profits could work together to create in total a
continually improving distributed library of free digital public works
covering all human needs. This would be a very different side of the
internet than the one full of tolls and restrictions that many
for-profit interests are working towards.
For a hint of what this might someday become, read Theodore Sturgeon's
short story written in the 1950s entitled "The Skills of Xanadu". That
story helped inspire our (hibernating) OSCOMAK project:
However, most non-profit organizations dealing with "know-what",
This model of fund raising has some serious negative consequences. The
main one revolves around preventing collaboration by preventing easily
making derived works. There are more subtle moral and ethical
implications as well, which Richard Stallman points out, as the age old
civic duty of sharing with a neighbor is made immoral and illegal (and
repositioned linguistically as "piracy").
Given the ease of free content distribution on the internet, to make
money from content, organizations must create an artificial scarcity of
their content (including text and software). This entails using
copyright to impose restrictions preventing anyone from making copies of
their content, so people will pay for licenses to use their content.
Since derived works are also copies in a way, organizations must also
prevent others from making derived works.
This derived-works restriction in turns prevents cooperation through
others easily building on the works, as it does in our case with NASA's
BioBLAST. In theory, money changing hands will let things continue to
happen, and sublicensing of content for derived works does happen to an
extent in the commercial world. However, even if a non-profit
organization is willing to license their works to others for a fee for
making derived works, this entails royalty payments, carefully
evaluating complex binding legal contracts, and other arrangements whose
initial cost to set up and operate generally exceed any expected revenue
of most subsequent charitable projects, and, further, force all derived
works to be handled as commercial, not gift, transactions.
Essentially, instead of having permanent lasting benefits, the initial
charitable investment made by some foundation or government agency into
supporting a non-profit organization's content creation process just
devalues over time as the content becomes obsolete or is forgotten by
the very organization that created it -- since no one else with an
interest in the work can maintain it.
The ironic thing is that most non-profits will probably fail to make
enough money from selling their content to even justify the expenses of
doing so, so the loss to humanity is for nothing more than a funding
fantasy.
Yet, there are millions of individuals on the internet who might
continue to improve content developed initially by non-profits, if these
individuals only had the right to do so (rights that can only be granted
by the copyright holder).
For example, I have a large selection of publications created by the New
Alchemy Institute on things like compost pile management, indoor fish
farming, and geodesic dome greenhouse construction. I paid for those
copies both for the information and to help support the institute. The
New Alchemy Institute is now defunct. I have no right under copyright
law to put these materials on a web site or to improve them , as much as
I would like to do so (until about 100 years from now). Quite possibly
obtaining such rights might cost more in time and money than creating
such materials from scratch or completely rewriting them. Even if I got
permission from someone previously affiliated with the New Alchemy
Institute or its successors to do something with the materials, how
could I be sure their information was accurate and their permission
meaningful and legally binding? Sadly, decades of innovative and
alternative non-profit R&D work done by dedicated and hardworking people
at NAI is effectively lost as far as the internet audience is concerned.
And that means, that R&D work is effectively lost to everyone in the
world as the internet continues to supplant other forms of content
distribution and use (like using inter-library loan).
In the past, when most information was sold on paper and was difficult
to modify, perhaps it made sense for non-profits to raise funds by
selling documents (as when I purchased the New Alchemy Institute
materials). But now, this old habit based on an out-dated paradigm is
preventing cooperation and collaboration to create the informational
underpinnings of a post-scarcity society demonstrating knowledge
democratization.
For me, the deepest tragedy of the New Alchemy Institute is somewhat
personal. I visited NAI around 1989 and later gave an invited talk there
to some interns, while a graduate student at Princeton. I wanted to make
a library on sustainable technology and related simulations, and NAI had
an extensive library on such topics and an interested member base and
even some Macintosh computers. But we never connected -- in part because
I was too shy and couldn't think of something coherent and fair to
propose as a way out of my boxes of being a PhD graduate student and
thinking in terms of a for-profit company selling proprietary software
requiring a substantial investment, and out of their boxes of being
mainly an agricultural technology R&D facility, selling products and
papers via their catalogue, and giving interns room and board for doing
manual labor. I was very saddened by the newsletter announcing their
demise around 1991, because I felt that working together on a digital
library of alternative technology we might have prevented that. [And
ironically Richard Stallman with his Free Software vision in Cambridge
was only about seventy-five miles away from NAI.]
For reference, all the NAI publications themselves are supposedly
available through inter-library loan at the American Archives of
Agriculture (AAA), located at Iowa State University. The library itself
became part of a "Green Center" at the same location, but I am not sure
if that is still in operation, and in any case NAI would have no way to
grant permissions for putting any works but its own on-line. Such works
would ultimately have to be rewritten from multiple sources to be put
on-line, a project probably worth doing, but something that would take
far more effort than putting on-line what exists.
How can we prevent such tragedies from happening again and again, even
for internet-connected non-profits? One possibility is simply for
non-profits from the start to put their creative works under licenses
allowing redistribution and the making of derived works. As a corollary,
they must then obtain their funding from ways other than selling
licenses to use copyrighted works. They can still sell permission to
access an archive, as long as the works including the entire archive are
freely redistributable once accessed.
Contrast, for example, this proprietary work of hundreds of appropriate
technology publications sold as micro-fiche or CD-ROM which is still
pretty much as it was ten years ago:
The Humanity Libraries Project is the exception to the rule. The
difficulties they face and the solutions they see to them (for example,
starting a petition just to get the UN to freely license its content so
people who need it can get it: http://www.humaninfo.org/join.htm ) just
show how bad the situation has gotten and how ingrained the old habits
are. Their petition idea helped inspire this essay on enlarging the
issue to being about the copyrights of all non-profits, no just the UN
and directly related NGOs.
Copyright for most government funded work goes to the for-profit
contractor, who usually just sits on the work because it is more
expensive and risky to market a copyright than to get another government
contract. Copyright for most foundation supported work goes to the
non-profit, who also usually just sits on the work or makes only token
efforts at marketing because it is more expensive and risky to market a
copyright than to get another foundation grant. Perhaps an occasional
exception is museums who show in-house created digital works until they
become obsolete in a restricted setting (generally entered only after
the patron pays a general admission fee).
In some ways, the state of non-profit copyright ownership and licensing
is so bad we don't even notice the issue anymore.
For example, where can one go to get a freely modifiable design
including CAD files for even a simple health-related appliance like a
wheelchair? Or worse, where is the community freely collaborating on
improving wheel chair designs? Are a few dozen intentionally-vague
patents on wheel chair design the best to be hoped for given the
trillions of dollars of investments into public works, including vast
amount of money spent on medical research?
Even if one found a wheel chair design with CAD files on the internet
(say, as a student project), could one be sure one could use or improve
it in terms of licensing? What is going wrong here, when something so
basic as wheel chair design is not freely available?
The fundamentally flawed concept is that digital public works are like
physical public works. When one creates a physical public work like a
bridge, it may make sense to charge a toll to pay for its construction
or upkeep -- although even that is questionable, see for example:
This physical public works paradigm is unfortunately then applied to
thinking about most digital public works, and there is a major flaw in
the analogy. A bridge does not require much marketing. It's highly
visible by the nature of what it is and how it is built. Things are
different in the content and software realm. Marketing costs for any
commercially successful software product are typically ten times that of
creation costs. Many well funded marketing efforts fail. So, almost all
projects funded by foundations with an intent to be marketed later using
other funds will fail because the funds won't materialize. Likewise,
because the costs of production are small relative to marketing, there
is usually little value in other's licensing the works (at typically
inflated fees) as opposed to just making new ones since the marketing
costs are the dominating factor.
Word-of-mouth marketing strategies can lower marketing costs, but it may
increase support costs, and it also often takes years. This is far
beyond the funding horizon of most non-profits with paid staff. Freely
distributed collaborative efforts like Linux may survive long enough for
word-of-mouth to help them -- but that requires a different approach to
licensing.
Plenty of public money is being spent -- it just is not connecting to
the community as digital public works. This failure to connect is also
in part because of another notion -- that patents and scientific journal
articles as funding "leftovers" are sufficient detail to support a free
technological civilization.
For an example of why this doesn't work, researchers at NASA just
discovered NASA doesn't have the rights to the 3D CAD models of the
International Space Station or the Space Shuttle. They had wanted to
make a virtual reality model of those for further research and
development of ergonomic design. Such plans are now on hold until new
arrangements can be worked out with the contractors.
Funding organizations need to break out of the mindset that the
organization doing the work to create something (in this case a NASA
contractor) should necessarily be the one to shepherd that work in the
future, and that in order to shepherd the work, their exclusive
ownership of most of the aspects of the work is justified. Both these
premises are flawed in the internet age. One group can create something
under a free license and another group can extend it if they have the
interest. A group who initially creates something under a free license
can shepherd a process involving members of the public contributing
under similar free licenses.
Consider again the self-driving cars mentioned earlier which now cruise
some streets in small numbers. The software "intelligence" doing the
driving was primarily developed by public money given to universities,
which generally own the copyrights and patents as the contractors.
Obviously there are related scientific publications, but in practice
these fail to do justice to the complexity of such systems. The truest
physical representation of the knowledge learned by such work is the
codebase plus email discussions of it (plus what developers carry in
their heads).
We are about to see the emergence of companies licensing that publicly
funded software and selling modified versions of such software as
proprietary products. There will eventually be hundreds or thousands of
paid automotive software engineers working on such software no matter
how it is funded, because there will be great value in having such
self-driving vehicles given the result of America's horrendous urban
planning policies leaving the car as generally the most efficient means
of transport in the suburb. The question is, will the results of the
work be open for inspection and contribution by the public? Essentially,
will those engineers and their employers be "owners" of the software, or
will they instead be "stewards" of a larger free and open community
development process?
Open source software is typically eventually of much higher quality
Without concerted action, such software will likely be kept proprietary
because that will be more profitable sooner to the people who get in
early, and will fit into conventional expectations of business as usual.
It will likely end up being available for inspection and testing at best
to a few government employees under non-disclosure agreements. We are
talking about an entire publicly funded infrastructure about to
disappear from the public radar screen. There is something deeply wrong
here.
And while it is true many planes like the 757 can fly themselves already
for most of their journey, and their software is probably mostly
proprietary, the software involved in driving is potentially far more
complex as it requires visual recognition of cues in a more complex
environment full of many more unpredictable agents operating on much
faster timescales. Also, automotive intelligence will touch all of our
lives on a daily basis, where as aircraft intelligence can be generally
avoided in daily life.
Decisions on how this public intellectual property related to automotive
intelligence will be handled will affect the health and safety of every
American and later everyone in any developed country. Either way, the
automotive software engineers and their employers will do well
financially (for example, one might still buy a Volvo because their
software engineers are better and they do more thorough testing of
configurations). But which way will the public be better off:
If, for example, automotive intelligence was developed under some form
of copyleft license like the GNU General Public License,
There are many other areas of human activities that the exponential
growth of technology will effect. Automotive intelligence is just one of
them that is here now and which I am familiar with from tangential
interactions at universities with people developing it. In enough time
similar issues will arise for the software behind household robotics or
intelligent devices that assist the elderly or handicapped. The IBOT
wheelchair by Dean Kamen using complex software to balance on two wheels
is just the beginning of such devices.
Note the IBOT wheelchair was developed entirely with private funds it
seems, so the reasoning in this essay does not apply directly to it.
Also, in general Dean Kamen is a role model of a socially responsible
for-profit inventor. Still, the issue arises of whether "Johnson &
Johnson" should be funding such development, as was the case, as opposed
to, say, the "Robert Wood Johnson Foundation", as was not, given the
public policy issue of whether individuals should be continually
dependent for personal needs on proprietary software. In either case it
would be worth it to pay billions for such innovation, and the public
will pay that in the end as a toll on for such devices.
There is a real question here of how our society will proceed -- mainly
closed or mainly open. It is reflected in everything the non-profit
world does -- including the myths it lives by. The choice of myth can be
made in part by the funding policies set by foundations and government
agencies. The myth that funders may be living by is the scarcity
economics myth. How does that myth effect the digital public works
funding cycle?
Essentially, most digital public works funded by the government or
foundations follow this process:
Very rarely, the project is a "success" in the sense of being able to
become self sustaining economically after generally a large number of
funding cycles, such as with automotive intelligence. At that point, the
idea is "commercialized" often by the private sector and often someone
makes a lot of money.
To an extent, the logic behind all this is similar to when the US Forest
service puts in $100 of logging roads for $1 in logging fees, because
supposedly cheap access to timber will promote the US economy and
welfare of US citizens (even if the timber gets sold to Japan).
In the forest example, it is the public wilderness and those who would
enjoy it spiritually or physically who suffer. In the automotive
intelligence example, it is the public domain of copyright that suffers,
and likely also public privacy and public safety. However, the same
logic could be applied to the results of creating a directory of organic
food suppliers or a book about how to achieve world peace. Restricting
access to all of them is a result of the same scarcity mythology, and
the exponential growth of technology requires a new funding mythos.
To break that cycle, what needs to be done?
The mythology of funding needs to shift to fostering the creation of
free works of public value. There needs to be a faith that such works if
they are of value will eventually attract further support (from public
or private sources).
How can that new mythology be implemented on a practical basis? Here are
some ideas:
1. Support free content creation processes more than specific products.
2. Support people and organizations participating in those processes,
either those making free content or those shepherding free processes.
3. Don't encourage organizations to become self supporting by selling
licenses for copyrights or patents. Suggest instead they sell services,
customization, or memberships if they want to become self-supporting --
but such things are hard to do so don't insist on them.
4. Reward with more grants people and organizations who actually make
important free content (however that is judged).
It is very hard to make effective grants, no matter how knowledgeable,
hardworking, and dedicated the foundation staff and board is. Michael
Phillips talks about this in the book "The Seven Laws of Money" based on
his experience on the board of the Point Foundation. So obviously, this
is all easier said than done. Actually, Michael Phillips argues in
practice it is impossible to give successful external grants, but
perhaps this new funding mythology of supporting free content may change
the granting landscape enough that some external grants will produce
good things, since at some point grant applicants could be judged on a
portfolio of previously developed free content in addition to perceived
public value for proposed new efforts.
What is an immediate thing the Markle Foundation could do to get more
digital public works built which address the foundation's interests of a
Policy for a Networked Society, Interactive Media for Children, and
Information Technologies for Better Health? Both my wife (Cynthia Kurtz)
and I have created public products at our own expense (such as the
six person-years spent to make our garden simulator). We are still
interested in free content creation processes, but have been limited
until recently in what we could do by basically having to work our way
back up to a zero net-worth over the last three years (mainly at IBM) to
pay back what we borrowed to complete our simulator and some other
educational and aesthetic projects (PlantStudio and StoryHarp software).
An investment in our work, say, by hiring us as staff members at the
Markle Foundation, with an employment agreement allowing us to create
public standards supporting free content creation processes, and
allowing us to distribute whatever content we create under free or open
licenses will at least ensure that there will be a few more public
digital works in the world. We can send resumes if there is interest.
But frankly, if you just look at our garden simulator you will see we
are competent and committed. And if you look at our comments online such
as at: http://groups.google.com/groups?ic=1&th=bc41381803b7e0c0,11
[now at:
But even if you don't consider working with us, please, please look
seriously at the copyright policies of individuals and organizations you
do fund. Please insist all the creative work you fund is communicated to
the public under free or open licenses.
-Paul Fernhout
Kurtz-Fernhout Software
Copyright 2001-2008 Paul D. Fernhout
License: Verbatim copying and distribution of this entire email is
permitted in any medium, provided this notice is preserved.
Note: I believe "fair use" of this work includes copying of short
sections with attribution for the purpose of discussion.
http://www.publicknowledge.org/take-action/action-struggles-with-ip
"Please email your story to pk@publicknowledge.org with "Public Domain
Stories" in the header. We'll present your stories to legislators, press
and the general public through a website, video and other media. Please
provide your name and a phone number where we can reach you during the
day and tell us if you would prefer to remain anonymous when we publish
your story."
http://www.gardenwithinsight.com/ ) which I or others donated to the
organization could be assured of only resulting in free works. Any
restriction in the bylaws can be changed by the directors fairly easily,
and any restriction in the articles of incorporation can be changed with
only slightly more work (filing something with the state). About the
only thing in our society that can really ensure non-profits maintain
free access to patents or copyrights they hold is well written contracts
between people who donate time or energy or patents or copyrights to the
non-profits (volunteers, contributors, employees), and even then this
level of freedom is only guaranteed to the extent the aggrieved party is
willing to sue. So, essentially, non-profit law has no provision for
organizations dedicated to public domain or free works. I think this at
least is a flaw in non-profit law that could be remedied somehow --
making it possible to put in an irrevocable dedication of assets to free
works when an organization is formed.
licensing for software or other creative works of various types, or
alternatively following the the Debian Free Software Guidelines, defined
here:
http://www.debian.org/social_contract.html
Examples of free licenses are public domain, GPL, LGPL, GFDL, and the
Apache license. For detailed examples see:
http://www.gnu.org/licenses/license-list.html
and related writings or commentary by the FSF's Richard M. Stallman
(included here by reference). It is noted here that the meaning of
"free" especially as it applies to creative works (as opposed to
technical works) may continue to undergo revision over time, but is is
the intent here to maximize the ability of recipients of free works to
use such free works in their preferred source form responsibly in a way
entailing no direct financial cost for licensing for use or
distribution, requiring no permission for the original author to
incorporate the work without substantial changes into larger derivative
and/or collective works which may be redistributed, and ideally
(especially in the case of primarily technical works) requiring no
direct permission from the original author(s) to create and/or
distribute derivative works including modified versions of the free
works (although such derivative works may be subject to licensing
restrictions requiring the derivative works to also be licensed freely
under terms similar to the original work). The specific restrictions on
the Corporation's activities to ensure this are:
A) that any copyrights and/or patents the Corporation creates
itself, or whose creation it directly supports in whole or in part, or
which it receives as donations or otherwise comes to hold, must only be
licensed under free licenses, and
B) that any trademarks the Corporation creates itself, or whose
creation it directly supports in whole or in part, or which it receives
as donations or otherwise comes to hold, will only used to support and
distinguish endeavors which require the free licensing of all the
resulting copyrights and/or patents, and
C) that copyrights, patents, and/or trademarks held for any reason by
the Corporation may not be voluntarily transferred from the
Corporation without contractual guarantees that future holders will
abide by these restrictions, and that the Corporation is required to
enforce these guarantees to the maximum extent feasible, and
D) that the Corporation will minimize its creation, use, or handling
of any other proprietary or trade secret or confidential information to
the greatest extent legally and practically possible, behaving in as
transparent a fashion as is reasonably possible, including the full
disclosure of all financial information in detail, and the avoidance to
the maximum extent feasible of non-disclosure agreements undertaken by
the Corporation, its employees, or it agents, and
E) that in the event of the likelihood of an involuntary transfer of
copyrights, patents, trademarks, good will, trade secrets or other
valuable intangibles from the Corporation such as from the result of a
judgment against the Corporation, the Corporation must take all legal
and feasible steps to prevent the transfer or to make a voluntary
transfer to an appropriate non-profit Corporation as under section (C)
or if appropriate place the item in the public domain. Notwithstanding
any of the forgoing, as a special exception, the corporation may
purchase mass marketed consumer products or consumer services such as,
without limitation, computers and telecommunications services, which
contain or rely on proprietary copyrights, patents, or trademarks (such
as most current computer chips), but the organization is required to keep
such purchases to a reasonable minimum, and to use free software and
free content or products derived thereof in its daily operations
whenever reasonably feasible."
http://groups.google.com/group/openvirgle/browse_thread/thread/b92804afacd0345b
]
"Policy for a Networked Society" program. From that Markle Foundation
web site page:
http://www.markle.org/programs/_programs_policy_guidelines.stm
> > The Policy for a Networked Society program addresses the
> > issues created by the unprecedented changes occurring in
> > our social, political, economic and legal systems as a result
> > of expanding computing power, convergence, and the rise
> > of a networked world. The program seeks to enhance the
> > public voice in the consideration and resolution of domestic
> > and international policies that need to be addressed in this
> > new communications environment, with a specific interest
> > in the protection of democratic values, individual liberties,
> > universal access and consumer interests. ...
> > We welcome ideas for topics that should be considered by the network.
righteous indignation on proprietary content from public funds
http://wwws.elibrary.com/s-default/info/terms.html
"You will not modify, publish, distribute, transmit, participate in the
transfer or sale, create derivative works, or in any way exploit, any of
the content, in whole or in part, found on the Service." (I pick this
example to illustrate the point in a familiar context, not to assume
the Markle Foundation still promotes such licensing policies.)
"no trespassing -- toxic waste -- keep out -- this means you" signs by
prohibiting making new derived works directly from pre-existing digital
public works. The justification is usually that tight control of
copyright and restricting communications of those materials will produce
income for the non-profit, and while this is sometimes true, the cost to
society in the internet age in terms of limiting cooperation is high,
and in fact, I would argue, too high.
http://www.loc.gov/copyright/circs/circ03.html
is now that all works are copyrighted upon creation. So basically
everything on the internet put up by non-profits without an explicit
license granting permission to use, communicate, and/or make derivative
works also has an invisible implicit "no trespassing" sign on it as
well.
http://www.markle.org/news/presidents_letter.pdf
Without an explicit license, and I see none in that document which
includes neither of the words "copyright" or "license", I would have no
clear right to email that file to friends, reduce it in size from 269K
Acrobat file to about 10K of plain text, or permanently archive it
should the Markle Foundation web server fail or simply be reorganized.
Was that really your (or your staff's) intent when making that digital
communication? Obviously you likely intended nobody rewrite your
opinions, but does it take such complete restrictions on communicating
your message and making related derived works to accomplish that? The
fact that the Acrobat file has no document security restrictions :-(
cannot be taken as a license to use it any way I want, especially given
a legal climate where copying can now be a felony under the DMCA. These
issues might not have seemed as important thirty years ago with a paper
letter mailed to me because it would probably have been reasonable under
copyright in 1970 (given that it is an open letter) to make a single
expensive photostat for a friend, post the original physical copy on a
bulletin board, or keep the physical copy in my own files indefinitely.
(Actually, since the letter has no copyright notice, in 1970 it would
have been in the public domain, protected only by "moral rights" and
laws related to libel or misrepresentation or privacy.)
http://www.w3.org/2000/12/drm-ws/pp/Overview.html
So is it really any surprise that the most common communication tools
(including Adobe Acrobat) reflect this bias even as the world moves to
clarify (an in practice probably further restrict) some of the things
that can be legitimately done with digital objects as "fair use"?
http://www.gardenwithinsight.com/
I now feel enough righteous indignation and moral justification to get
on this email soapbox on what should be done with internet content
funded by public or tax-exempt money in educational and other arenas
(not that you have to listen. :-)
post-scarcity economics and exponential growth
economy is emerging.
http://www.google.com/search?q=post-scarcity
This post-scarcity economy is made possible by such things as:
* the exponential growth of technological capacity (including the
internet),
* increasingly widespread knowledge, and
* new ways of collaborating pioneered by free software and open source
developers.
http://www.research.ibm.com/journal/rd/443/preface.html
Computer expert Raymond Kurzweil discusses this (and more) in his essay
on how people maintain an "intuitive linear view" despite the facts
supporting the "historical exponential view":
http://www.kurzweilai.net/articles/art0134.html
He suggests that failure to take into account exponential growth is one
reason we usually overestimate how much change can happen in the short
term and underestimate how much change will happen in the long term.
I've also written an essay on this topic as well:
http://www.bootstrap.org/dkr/discussion/0126.html
http://www.navlab.org/projects/navlab_overview.html
when the computers to run it cost a million dollars. I have since heard
of people who now use this technology routinely (although clandestinely
for liability reasons) using a laptop that costs about $1000. Such
technology could greatly change our society if widespread. It has the
potential to give commuters hours more free time every day to do other
things while being driven. It could possibly free up parents in suburbs
from needing to chauffeur children. It could allow elderly people living
in suburbs to be more self-reliant for longer. This technology exists
today -- although there remain organizational issues to resolve,
especially related to insurance and liability, before it becomes
widespread.
http://www.transhumanist.com/volume1/moravec.htm
And here is one person's negative spin (Bill Joy):
http://www.wired.com/wired/archive/8.04/joy.html
This is an attempt at laying out both perspectives side by side:
http://www.tecsoc.org/innovate/focusbilljoy.htm
And this is some related commentary from numerous perspectives (centered
around Jaron Lanier's comments):
http://www.edge.org/3rd_culture/lanier/lanier_index.html
http://www.frc.ri.cmu.edu/~hpm/book98/fig.ch3/p060.html
A new laptop computer can easily outcalculate the highest end early
1970s Mainframe which cost tens of thousands of times more. Likewise,
bandwidth will be enormously improved in terms of price/performance in
that time frame since a single optical fiber to the home could stream
terabits or more per second.
http://www.wired.com/news/technology/0,1282,35079,00.html
http://www.bfi.org
like a forgotten rose bush. Hopefully we can avoid the thorns.
post-scarcity information economics and non-profits
http://www.well.com/user/mgoldh/natecnet.html
James P. Hogan wrote a novel "Voyage from Yesteryear" around 1982 on a
similar premise describing a gift economy governed by status:
http://www.jamesphogan.com/books/voyage/baen99/titlepage.shtml
http://www.centerforthepublicdomain.org/
and an organization it funds:
http://www.ibiblio.org/
that are both doing a great job at enlarging the public domain as
opposed to shrinking it.
scarcity still exists and may recur
http://www.thehungersite.com
and billions of people still live in poverty.
http://www.worldbank.org/poverty/mission/up2.htm
how copyright ownership corrupts the non-profit mission
http://www.cotf.edu/BioBLAST/
I'm not saying BioBLAST wasn't worth funding, or that it doesn't have
some interesting features perceived as useful for its target academic
audience compared to the garden simulator, but that group probably could
have added those features onto the garden simulator, which was out with
source under the GPL around two years before BioBLAST was released.
There may be legitimate reasons why they wouldn't want to build on our
privately funded work, but what really frustrates us is that we can't
easily build on their publicly funded work if we wanted to. Their site
hasn't been updated in over a year, so how long will it be before the
software and content just fades away and NASA's "investment" is lost?
There is no way we or anyone else could support BioBLAST or maintain it
if we wanted to.
http://www.fsf.org/copyleft/copyleft.html
so everyone, for-profit and non-profit alike, could build on it in some
way. That wouldn't help with trademark infringement issues, but
fostering a related worldwide culture of benevolence, cooperation, and
sharing in non-profits might, because that might in turn at least do
more to promote an attitude of friendly competition in non-profit staff
instead of combat over what might seem at first to be finite resources.
"free" content and "subsidized" content. There is a world of difference
in terms of making derived works, since free content can be given away
with permission to make derived works, whereas subsidized content can't.
http://www.gnu.org/philosophy/categories.html
Since half the match needs to come from selling licenses to the work,
this means derived works can't be easily allowed. Problems also arise
when a developer matches free funds with a free license to a proprietary
underlying platform, because the combination can then never be free in
the sense of allowing derived works. For example, can I recompile
SimHealth and make improvements or port it to new platforms?
"proprietary" contribution and the result is essentially proprietary
(even when the price of the result is $0). It might be much better to
have half as many truly free projects as opposed to twice as many
proprietary ones, because everyone could potentially benefit from
building on the free projects, so their value each might be
(arbitrarily) 10 times that of proprietary ones.
more subtle pollution problems
"free" standards -- in part because they are very complex and in effect
defined by equally complex proprietary implementations (even when in the
Adobe case there is a published document defining the format).
is it "self-dealing" to exchange public property for salary?
http://www.iis.fhg.de/amm/legal/index.html
http://www.fhg.de/english/company/index.html
is causing distress to free software developers, and their response is
to invent a new audio encoding system.
http://www.vorbis.com/
(My response to similar distress could be seen as this effort to
reinvent the non-profit sector entirely. :-)
"Germany Leads In Open-Source Development"
http://content.techweb.com/wire/story/TWB20001101S0016
so this situation reflects internal conflicts in German society as well.
"moral rights" or "privacy rights" over various types of content they
produce as the situation applies. For example an artist collective might
not want their digital paintings modified (even if they can be freely
redistributed), or clients at a clinic might not want their digital
records made publicly available. Both are digital works, but in one case
"moral rights" may apply, and in the other "privacy rights" may apply.
There will undoubtedly be gray areas as works fall between categories
(e.g. a work of art telling how to do something).
if you can't beat them, change them (and maybe that's best)
http://www.tides.org/center/index.cfm
several years ago to discuss fiscal sponsorship. Tides is a wonderful
organization promoting among other things communications among
non-profits and sent us their information packet. In it we discovered
that for legal reasons related to fiscal sponsorship and self-dealing,
Tides would need to own all the copyrights on anything we produced.
While we in general would trust Tides more than anyone, there are
several things that could go wrong with such an arrangement from our
point of view. It might not be clear where the lines begun
and ended with copyrights made for work given away for free and those
sold to create revenue (say as part of our consulting operations). Tides
might decide to play mother-hen and insist we sell copyrighted works we
want to give away on some notion of fiscal responsibility. Tides might
just get weird about the copyrights if they proved extremely valuable.
Likewise, Tides might abandon us if the copyrights proved a liability.
The last is not much of an issue for most content itself (Even if
controversial) since Tides repeatedly defends progressive views.
However, in the case of creating tools to help others create and share
free content, we would potentially be creating a huge liability for the
actual copyright holder, and so Tides might decide the risk was not
worth it on very legitimate grounds relating to jeopardizing the rest of
their mission. On the other hand, we as individuals with few assets have
the asset of being "judgment proof". No doubt many of these issues could
be addressed with effort if we wanted to get a grant so it is something
we still consider. But they would be easier to address if the non-profit
paradigm was different (e.g. we wouldn't have to worry at all about the
stewardship of such publicly copyrights if held by another non-profit).
http://www.gardenwithinsight.com/nsfprop.htm
Granted we may have not been the best communicators, but we did explain
why at length an open process made sense. The deeper issue we feel is
more one of a conflict of scarcity and post-scarcity paradigms, even
among those doing the giving, because in the rest of their lives
scarcity economics may still seem to rule.
how new alternatives can work
"external cost" to the shareware method of marketing.
http://www.westlaw.com/about/
they are not paying to use the law itself, say when they make an
argument in court.
http://www.ogilvy.com/memorial/html/onads.htm
why "new" alternatives need to work
examples of fine-grained cooperation in action
http://www.everything2.org/
http://dmoz.org/
http://www.slashdot.org/
http://groups.google.com/googlegroups/deja_announcement.html
At this point, I rely on these newsgroups to do a good job as a software
developer when starting a new project with new technology. My technical
questions are almost always asked and answered already.
http://www.kurtz-fernhout.com/oscomak/index.htm
and a related "moral license" concept:
http://www.kurtz-fernhout.com/oscomak/license.htm
how things go wrong with current practice
"know-how", or "know-why" content (i.e. science, technology, and
art/philosophy) still follow the common practice of supporting their
continued existence as they transition to the internet age by attempting
to make money directly selling digital public works funded by grants,
the same way they used to sell text books, blueprints, or art prints.
http://www.fsf.org/philosophy/philosophy.html
Naturally, promoting sharing still needs to balance both "moral rights"
of authors getting credit for their works or controlling some aspects of
the presentation or alteration of aesthetic or opinion works (as opposed
to functional ones), and "privacy rights" related to personal
information. For more on these distinctions, see for example:
http://www.ipmatters.net/webcaught/interview_stallman.html
or:
http://www.fsf.org/events/rms-nyu-2001-transcript.txt
the tragedy of the New Alchemy Institute
proprietary vs. free content producer example
"The Appropriate Technology Library"
http://www.villageearth.org/ATLibrary/cdrom.htm
with this blossoming free library to aid developing nations which is
available directly over the web:
"The Humanity Libraries Project"
http://www.humaninfo.org/
Which one has more of a future given the internet? Which one could
continue be improved if the supporting organization were to suddenly
become defunct? Which organization and development process is then
really the lower risk "investment" for a foundation grant?
even designs for simple health appliances are not free
digital public works are not physical public works
http://www.gnu.org/philosophy/shouldbefree.html
patents, blueprints, and journal articles are "leftovers" today===
what have funding policies in automotive intelligence wrought?
http://www.fsf.org/software/reliability.html
and reliability because more eyes look over the code for problems and
more voices contribute to adding innovative solutions. About 35,000
Americans are killed every year in driving fatalities, and hundreds of
thousands more are seriously injured. Should the software that keeps
people safe on roads, and which has already been created primarily with
public funds, not also be kept under continuous public scrutiny?
* totally dependent on proprietary intelligences under the hoods of
their cars which they have no way of understanding, or instead
* with ways to verify what those intelligences do, understand how they
operate, and make contributions when they can so such automotive
intelligences serve humane purposes better?
http://www.fsf.org/copyleft/copyleft.html
then at least car owners or their "software mechanics" would be assured
they could have access to the software in source form to ensure safe
operation. What might be "street legal" in terms of software
modifications might be a different story -- in the same way people can't
legally drive with a cracked windshield or a broken headlight. For
example, software changes might need to first be proven safe in
simulation before being provisionally "street legal". But, the important
thing is, foundations or government agencies funding code development
could insist on some form of free licensing terms for automotive
intelligence as a matter of public policy.
http://iwsun4.infoworld.com/articles/op/xml/99/11/22/991122opmetcalfe.xml
the cycle of failure
* public money is paid to some organization to develop some seemingly
useful digital work either as a "prototype" or as a "product",
* the contractor argues it is important to create an artificial scarcity
for the work through copyright to ensure future support of new versions
of the work by the contractor without the need for future grants,
* without marketing, which is almost always more expensive than expected
(everyone hopes word-of-mouth will be enough for an overnight success),
the work fails to attract enough interest to justify continued
distribution and minimal support costs,
* the work is quickly outdated given limited original investment in it
and rapidly changing platforms and needs, plus the PI wants to move onto
other things, and so,
* the cycle repeats, since an organization that has learned how to get
one grant probably knows better than anything else how to get another.
encouraging successful collaboration
a sure thing
http://groups.google.com/group/gnu.misc.discuss/msg/1e499c6db59117a2?
]
(where we attempt to shift the paradigm of digital rights management
tools from "preventing unauthorized use" to "ensuring the right to
freely use and communicate" such as to address the tools/protocols issue
raised at the start of this essay) you will see we are insightful and
innovative. We've both programmed a lot (thirty+ years in total), and we
are both working for IBM as contractors. I'm contracting through June
with IBM Research on XSLT standards. Cynthia is contracting with the IBM
Institute for Knowledge Management on storytelling based communications
and complexity. Cynthia is especially interested in issues relating to
teaching tolerance and preserving indigenous knowledge and folklore. I'm
more interested in developing a library of sustainable technology along
with better processes for collaborative development of new free works by
using clear licenses governing the use of all related communications.
However, while our content generation activities are low legal risk, any
work I do in the area of tools to help share information is of high
legal risk, and the Markle Foundation might justifiably decide not to
take on such a liability (even if it does relate to its larger mission).
please keep charitable content free; ask peers to do likewise
http://www.fsf.org/philosophy/license-list.html
http://www.opensource.org/
And please encourage other peers in foundations and government agencies
to do likewise (such as through the Digital Opportunity Task Force).
That way, even if we don't work directly with you on our own projects,
at least others like us can build on top of the efforts of people you do
fund. That would at least be a big improvement over the current
situation.
======================================================
Developers of custom software and educational simulations
Creators of the free Garden with Insight(TM) garden simulator
http://www.kurtz-fernhout.com