RE: <nettime> The Fading Altruism of Open Source Development

["Kermit Snelson" <ksnelson@subjectivity.com>]

The open source paradigm should not be identified with altruism.  This was
Felix's main point, and I very much agree.  I also agree that software
developers, like lawyers, can make a good living by selling their time
rather than licensing their product.  This is hardly news, however. (And the
example of US legal celebrities such as Alan Dershowitz and Melvin Belli
shows that the path to true riches in the law lies not on billable hours,
but on widely distributed and copyrighted product.)

But then Felix goes on to call the law "a great Open Source project."
Although it's clear to me that he intended this statement to serve only as a
qualified analogy, I think it's politically important for the record to show
that this is far from being the case in practice.  The fact is that large
amounts of the legal apparatus and of the law itself are copyrighted and
commercially licensed.

As Felix points out, the common law system requires that prior court
decisions be published and indexed.  This massive publishing task, however,
is carried out not primarily by governments, but for profit by large
commercial entities such as Thomson and Reed Elsevier.  The actual practice
of precedent-based law today depends on case, statute and authority finders,
nearly all of which are the extremely expensive and copyrighted products of
commercial publishing empires.

Not only is the legal research apparatus licensed at great expense, but
sometimes so are the statutes themselves.  Building codes, fire codes and
commercial codes provide many examples of laws that are written and
copyrighted by private organizations and then adopted as public law by the
legislatures.  In the USA, this has resulted in counterintuitive (to say the
least) situations in which state governments cannot hold copies of their own
laws without paying large royalties to the private corporations that wrote
them.  Needless to say, US citizens in such cases are also obliged to pay
these private organizations in order to learn the laws to which they are
subject.

In the UK the Crown asserts copyright on all laws, although it currently
waives its rights with respect to legislation.  But with respect to other
public assets such as Ordnance Survey mapping, it vigorously exercises the
Crown copyright with the express purpose of commercial exploitation.  The
assertion of Crown copyright on legislation makes it entirely legal for the
Crown to do the same with the public statutes should it so choose.

If the law holds a lesson for the open source software development paradigm,
it is that it is becoming extremely difficult even for governments to
finance the increasingly technical and massive task of creating and
administering the law without resorting to copyright and other restrictive
measures.  Universities are in a similar situation with respect to research.
Any political response to the threats posed by these developments to
democracy, free inquiry and free software must be based upon an objective
and accurate understanding of the economic and technical realities upon
which this political situation is based.

Kermit Snelson


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