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Presented by Arts Council of England, Academia Europaea, the University of Cambridge Computer Laboratory, and Cambridge University Law Faculty Intellectual Property Unit

Jane Szita is Managing Editor of Doors of Perception, the design futures think-tank and conference organisation: www.doorsofperception.com. Leonardo Digital Reviews is grateful for permission to republish this review by Jane Szita.
E-mail: editor@doorsofperception.com



Conference report
April 2001

Whose DNA is it, anyway?
The libertarian ideals of the Free Software movement collided head-on with the powerful interests of privatisation at the CODE conference in Cambridge

Rescuing a damsel in distress remains a powerful symbol, it seems. Only in this case the damsel is an animated Manga character, produced by the industrial animation company Kworks. Sold off the shelf for 46,000 yen, she faced a brief, probably brutal, destiny in a computer game.

Artists Philippe Parreno and Pierre Huyghe bought her copyright and rescued her from certain death. They called her Annlee and they open-sourced her, replacing her cute face with an enigmatic mask. They gave her a voice, a character, a story. And because she is now Open Source, Annlee can be developed by others. She has any number of potential histories and potential futures.

The animations featuring Annlee kicked off the CODE (Collaboration and Ownership in the Digital Economy) conference at Queens' College, Cambridge. The symbolism was unmissable: the Open Source movement as a knight in armour, a force for good, rescuing the mindless non-inventions of industrial production for meaningful cultural interpretation.

Before and after: Open Source rescues Annlee

In the face of the powerful forces for privatisation, of the proliferation of patents and shocking recent extensions of intellectual property rights (IPR), can the Free Software and Open Source movements, plus 'free' distribution of content, provide an alternative to the corporate vision of the world? This was the central question posed by CODE.

In a broad look at its subject, the conference brought together leading thinkers and practitioners from the media, software, law, technology and the arts - a mixture that eventually proved explosive. So, it was typical of the CODE approach, though perhaps something of a novelty in the new media context, to find the first speaker was from the field of English Literature Studies.

THAT 'LONE GENIUS' MYTH AGAIN . . .

Martha Woodmansee (Case Western Reserve University, Ohio), who has probably not had the privilege of talking to so many computer programmers at once before, framed the subject of copyright neatly: she traced our modern obsession with the lone creator to the Romantic notion of the poet as an isolated genius working in feverish solitude.

This idea, incidentally, is invalidated by any study of the Romantic poets themselves, who demonstrate a degree of collaboration and intertextuality no less than that found in Shakespeare's time, when these creative features were openly accepted. Indeed, Goethe - the prototypical Romantic loner - himself wrote: "My work is the work of a collective being who bears the name of Goethe."

Woodmansee argued that it was the book market of the early 19th century which encouraged the Romantic poets to set themselves up as solitary innovators. William Wordsworth, notwithstanding the creative debts he owed to his sister, his wife, the poet Coleridge and a host of others, played a major role in the campaign which led to the English Copyright Law of 1842.

Computer analysis has allowed English Literature as a discipline to explore the collaborative influences - and reclaim the social context - of the dead white males of the Canon, while students in the US now take courses on the real-world skill of collaborative writing. Yet, Woodmansee warned, collaboration in the digital domain is still threatened by Romantic ideology.

Her words acquired a certain ironic resonance in the days which followed, as Richard Stallman, the prophet-like originator of Free Software, did a dramatic 'voice crying in the wilderness' routine in the middle of someone else's speech, then stormed out, and a Finnish 'documentary' film portrayed Linus Torvalds (and other prominent open sourcers) with the kind of cultish reverence shown by the Victorians towards (dead) poets like Shelley and Byron. They may have done away with the copyright idea, but free software figureheads are still very much in the mould of the lone Romantic genius.

For writer Geert Lovinck, who took the stage after Woodmansee, the future of true collaboration depends on an honest critique of Open Source - beyond the polarity of 'free software good, IPR bad'. In particular, the thorny question of alternative economic models must be grasped by a digital culture hitherto blinded by the California ideology espoused by the likes of John Perry Barlow: give it all away (and make money somehow, some day - possibly on T-shirt sales).

BANKRUPTCY: GOOD FOR THE DOTCOM SOUL?

The dotcom crash invalidated the Californian ideal forever, although, as Lovinck pointed out, you would not think so from the attitude of the dotcom media - still preaching mindless optimism and the value of bankruptcy as a cleansing experience, even while the crash filters down and they find themselves on the street (as happened this month with the closure of the Europe edition of Industry Standard).

The next speaker, anthropologist Marilyn Stathern, seemed to be on the programme in order to give a view of collectivity in tribal societies. She quickly dashed the audience's expectations, however. Her analysis of Papua New Guinea's traditional culture made it clear that, far from collectivity, multiple property rights are the norm. In the case of Malangans, memorial figures of the dead, which people pay to view even as the original is destroyed, the act of purchase is not an act of acquisition, but of maintaining the flow of information between groups. The Malangan's continued existence, in the memory of the beholders, is guaranteed by the transaction.

Open Source, Christopher Kelty (another anthropologist) reminded us immediately after this, is supposed to be part of a gift economy, with reputation as its currency. But how do you spend reputation? Richard Stallman, who spoke next, embodied Kelty's rhetorical question: his reputation is legendary, but his work since leaving MIT has been made possible only by the so-called Genius Grant he has received.

If, by this stage, anyone in the audience still thought that the Free Software and Open Source movements are simply about open source code versus closed (proprietary) source code, Stallman forcefully spelt out the bigger picture. Open code means an open society, and vice versa.

His analysis of the history of copyright - non-existent in the ancient world, and a benign industrial regulation in the print era - concluded with the observation that computer nets return us to an ancient era, in which copying is a decentralised process, available to anyone, and encompassing commentaries and compendia. In such an environment, "Copyright becomes a Draconian crackdown, anti-human freedom," even though the media giants do their best to persuade us that copyright is normal, natural and necessary.

ENTER THE 'MOZART OF CODE'

Stallman - who had been introduced by Michael Century as "the Mozart of code, with the social passion of Tom Paine", and who ascended the stage bare-footed and Biblically-bearded - warmed to his subject with religious zeal as he listed the repressive, Soviet-like measures now used in the US to 'protect' copyright. He attacked the e-book as a publishing fait accompli, designed to strip readers of traditional rights, such as copying, lending, reselling or giving a book away. Having vented his wrath on the various ways in which copyright profiteering is "attacking society's most important resource - its good will, its willingness to share," Stallman set out a constructive proposal for new copyright categories, based on a work's function.

Under his scheme, modification would be allowed with functional works (software, cookery books, reference works), but not with opinion pieces (essays, memoirs, etc). Aesthetic works should be categorised according to purpose - whether commercial or non-commercial. His suggestion of voluntary donations for music and other artforms was appealing, but, he admitted, would need some easy, anonymous form of e-cash to be feasible.

Among other dire warnings, he left us with the observation that if Shakespeare were writing today, most of his plays would be unpublishable because of copyright - a valid point, not least because Shakespeare was indeed (fairly) accused of plagiarism by rivals, but his accusers - unlike their counterparts today - had no power to silence him.

Michael Century followed Stallman with an exemplary humility of manner, as befits a man who has been an advisor to the Canadian government and Rockefeller Foundation. He argued that IPR should take account of the two categories of work distinguished by Goodman: autographic (eg paintings) and allographic (music, literature and anything else which depends on a notational scheme). Clearly, a copy is a forgery in the case of autographic works, but not in the case of allographic ones. He also posited an "ecology of payments - donations, micropayments and subscriptions" on the Net of the future, but again all of these would again need to be assisted by a sensible digicash system.

A SECOND ENCLOSURE MOVEMENT

After a rather lavish lunch, the law session loomed before us like - well, like the opportunity for nodding off a bit, to be honest. However, all sleepiness was soon done away with as James Boyle (law professor at the Duke Law School, North Carolina) managed a speech that was funny, fluent and far-reaching.

He began by cataloguing the extraordinary expansion of IPR over the last 15 years: biotech patents, business method patents, length of copyright terms, all of which add up to a kind of 'second enclosure movement'. The economic rationalisation behind these moves is that an incentive is needed for the creation of new products; the incentive in this case being a monopoly. "The Internet has exacerbated this situation," observed Boyle. "It's seen as a giant vacuum cleaner, consuming all the content in the world. No wonder there's been an over-reaction."

Boyle went on to argue for empirical studies to show whether IPR works - while clearly suspecting that it doesn't. A monopolistic market, he explained, must have price discrimination (as in the ludicrous variation in airline ticket prices), and this is behind Bill Gates' famous remark to the effect that Open Source is an un-American activity. Open Source, after all, undermines the ecology in which price discrimination can flourish. With Gates' shadow still falling across the podium, Boyle's conclusion was powerful: "A sophisticated critique of the state of affairs is needed . . . we are about to construct digital culture on the basis of the business plan of a monopolist, which would be a tragedy."

The next speaker, Bruce Perrens, another Open Source leading light, is an interesting case-study in the evolution of the movement; he started out writing free software in his employer's time, then became a 'volunteer' programmer before joining HP as they were taking Open Source onboard. As he said himself, "I started out as an isolated lunatic and am now three people from CEO."

Justin Watts, an IP lawyer, must have known he wouldn't be the most popular speaker to take the floor when he got up to follow Perens, but he probably had not expected the attacks which came his way. The trouble started when Watts remarked that Open Source programmers could to some extent ignore the threat of patents, as in true Open Source there is no central figure, no 'gatekeeper' who can be sued by the patentee.

STALLMAN STORMS OUT

Richard Stallman leapt up at this point to state that the mere threat of being sued would be enough to stop a developer; he went on to state how developers need to protect themselves. This could be done, he said, with counterstrikes, collective actions, and the backing of big companies like IBM and HP.

Although repeatedly asked to allow Watts to finish, Stallman eventually became incensed enough to dissociate himself from the Open Source movement altogether, which on an ideological level he clearly regards as a sell-out of Free Software principles. He stormed out, with all the drama and hair-tossing one would have expected of a true Romantic.

This was great theatre with which to end the first day. Stallman's appearance at the formal dinner that night was a PR coup for the conference organisers; but he looked cross as he sat through Glynn Moody's after-dinner speech, in which he compared Stallman once more to a musical genius (only this time it was Bach, while Linus Torvalds was cast as Mozart).

More myth-making followed that evening with the screening of the Finnish film in which the Open Source crew featured as an aggregate of solitary geniuses. The absence of women developers was accentuated by the appearance of mothers and wives, earnestly exhorting their dedicated menfolk to stop coding in order to eat: a role rather reminiscent of Wordsworth's housekeeping sister Dorothy.

The next morning dawned with Tim Hubbards, of the Human Genome Project, recounting the scary story of Celera's attempted hijacking of the project for monopolistic ends - an attempt which very nearly succeeded. Hubbard summed up the conceptual collapse of the US patent system with a simple analogy: "If you have a patent on a mousetrap, rivals can still make a better mousetrap. This isn't true in the case of genomics. If someone patents a gene, they have a real monopoly - the company that owns BRAC1 (the breast cancer gene) is already shutting down 'rival' diagnostic labs." Awarding patents for genomics clearly does not increase competition.

"Patents should be only for inventions, not ideas," elaborated next speaker Bob Young - the CEO of Red Hat, the company which assembles the (free) Linux kernel into (paid-for) Linux-based operating systems. "The software industry still adheres to a feudal model," he said. "Their clients are victims, not partners."

DATA EXPLOSION Roger Molina, the astronomer and editor of art magazine Leonardo, who followed him, drew attention, as Tim Hubbards had also done, to the enormous proliferation of raw data in his discipline: 40,000 CD-ROMs every year, with this amount due to triple within a few years. With such an explosion of data, IPR makes little sense - limiting access means slowing analysis.

So, very sensibly, astronomers have given up the individual property rights (which were enshrined in data-poor times) for a kind of astronomical commons, the International Virtual Observatory Project. Data is in the public domain, there is public involvement, and new forms of collaboration are evolving. There are lessons for many other areas of knowledge here.

The artists took the platform next, with Antoine Moreau (founder of Copyleft) arguing very eloquently that the fusion of art, Open Source and the Internet is a force for transforming society. V2's Anne Nighten then recounted her practical experience of cultural Open Source projects, usefully highlighting the problems which documentation, production costs, maintenance and unsuitable service-based income models present for non-tech organisations - and which had hitherto been largely glossed over.

Artist Alok Nandi presented his vision of the computer as both narrative device and as monomedia carrying different types of content: his 'architextures' appeared to be a computer equivalent of montage. He urged collaboration at all levels of creativity and consumption, with cuisine as the guiding metaphor for this. His own project, at www.urbicande.be, started with text and images which were given for free; but 'payment' has been received in the form of contributions from visitors which have allowed the imaginary universe of the project to grow.

He was followed by Drazen Pantic, who made the observation that, "The Internet has a quantum mechanical effect. By observing something, you change it." In this fluid, quantum mechanical world, it would seem that copyright goes against a basic, universal process. Thus when SlashDot (the first successful example of open source publishing) removes a document from its site because it is threatened with legal action, the quantum world of the Net is being subjected to Newtonian laws, and two different universes are brought into contact - and conflict.

CSS-DESCRAMBLE: OUTLAW CODE

To stretch the quantum metaphor, matter may disappear from one place on the Net, only to reappear somewhere else. John Naughton (Open University and Wolfson College, Cambridge) made this beautifully apparent with his presentation of different forms of the outlawed CSS-scramble code - the Open Source DVI player code which is subject to more censorship in the USA than the instructions for making an atomic bomb. Yet the outlawed code is still out there on the Net - as an audio file, disguised in a poem - and in the real world, as a T-shirt.

Naughton drew attention to the fact that Cambridge University's own Senate House had recently debated a proposal to make the work of all of its students the property of the university. This he contrasted with the recent announcement by MIT that it would give away all its teaching materials on the web, forever. These two facts, which show two approaches so diametrically opposed, in themselves encapsulate the absurdly polarised Alice in Wonderland world faced by the knowledge guardians of the 21st century.

The urgent need for new economic models had been a recurring theme of the conference, and Rishab Ayer Ghosh's pioneering work on so-called cooking-pot markets has gone further than most in defining new terms. He is working on finding an exchange rate for free software, by surveying open source code to find authorship percentages (as authored lines of code).

Robin Mansell (LSE) identified three transaction models - public domain, indirect revenue (as with Open Source), and direct revenue (proprietary software). Her research indicates that the future will increasingly favour indirect revenue - good news for Open Source, but the problem of defining these indirect revenue models remains.

Mansell believes IPR in the digital domain must fail, as any rule which makes everyone a criminal loses its legitimacy. Philippe Aigrain of the EU - which is poised to bring European IPR legislation more into line with that of the US - pointed out that new frameworks need time to develop; he did not seem very confident that they could evolve in time to prevent the "tragedy of enclosures" which he fears. "We do not yet know how open information can lead to revenue streams," he said, once again raising the question of economic frameworks.

This was not the only question that the debate started at CODE still has to answer. No one had yet explained how to engage ordinary people in the campaign for open code, and an open society. Or how to encourage Open Source developers to make the lowly applications that make up the average desktop. But one thing had been made abundantly clear: that it will be the biggest missed opportunity of modern times, if all that Free Software liberates is code.

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