Chapter 6: Open Source, the Expressive Programmer, and the Problem of Property

. . . In the early 1990s, among intellectuals spending their spare time discovering the pleasures of online communicating, the unexpected spread of the internet seemed to create an opportunity for bringing up big philosophical issues in fresh ways, in ways that might be heard outside the confines of a narrow circle of colleagues, in ways that actually might have an influence. The way that the internet took established institutions by surprise in the early 1990s offered an opening, a place where intellectual iconoclasm actually might gain some purchase outside the academy.

As we saw in the last chapter, libertarians like Esther Dyson began to discover this possibility in the late 1980s and seized on it in the pages of Wired and other venues; in a sense, their hope was that, somehow, computer technology could turn [property] mud back into crystals. As the 1990s progressed, however, it was the iconoclasts of the legal Left who began to move towards the internet. . . . A legal historian on the faculty at Columbia Law School named Eben Moglen signed on to be general counsel to the then-little known Free Software Foundation in 1993; Moglen had worked as a programmer in the early 1980s, but his early legal career was made up of law journal articles on the historiography of early twentieth-century law . . . .39

It is common enough for a mid-career professor, once granted tenure and thus no longer so needful of having to prove oneself to senior colleagues, to look for something a little more worldly, something that might take one closer to the rough-and-tumble of current events. But this move usually takes the form of backing off from the more abstract, perhaps philosophical concerns that seem of highest interest inside the academy; one starts accommodating the concerns of, say, politicians, or practicing lawyers, or interest groups. What is striking about the development of cyberlaw was the degree to which it was driven by a sense, not that one would have to abandon the philosophical to deal with the "real" world, but almost the reverse. The way the internet entered American social and political life created a context that seemed to actually welcome an inquiry into first principles while also maintaining a sense of positive possibilities. Intellectual radicalism―in the sense of a critique of the roots, of the underlying conditions of a situation―seemed to be the way to go. Maybe everything we thought about copyright (or property, or government regulation) was wrong; but, uniquely in the context of the internet, that conclusion was perhaps not dispiriting. It carried with it a sense that something could be done.

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Someone like Esther Dyson might argue that these [open source] trends are simply about another business model or that calling the free distribution of information is hardly a new idea. She'd have a point. Universities and libraries have often in various ways supported the free and open distribution of information as a matter of organizational principle. And open source by itself is hardly a threat to capitalism as a whole. Any thorough look at the history of capitalism shows that "pure" markets have at best been temporary and fleeting events; capitalism has generally thrived only in the context of various extra-market political and institutional underpinnings, with some things treated as property amenable to exchange and other things not.70 All economies, it turns out, are mixed. If, say, operating systems become all open source, if they are moved from the category of things that are exchanged into the category of noncommodified things that enable other things to be exchanged, capitalism will not come crashing to the ground.

But the role of open source as a political economic object lesson cannot be dismissed. Capitalism may not require pure markets or crystalline property relations, but it does need some kind of legitimacy, some mechanism by which it can be made to feel right, or at least worth acquiescing to, among broad swathes of the population. Romantic individualism, understood as a structure of feeling mapped onto a mix of experiences with computer use, is, as we have seen, a persistent phenomenon in American culture, one that has its own specific character and valences. If, in the early 1990s, Wired's version of romantic individualism was harnessed to neoliberal market enthusiasms, later in the decade that same structure of feeling, as articulated by Eric Raymond, Larry Lessig, and Slashdot, became a key element in a countervailing effort. At this point, the details of that object lesson remain confused and blurry. But the assumptions that dominated decision making regarding intellectual property in legal and managerial circles from 1980 to 1997 have changed; it is no longer automatically taken for granted that property protections are the best or only incentive for technological innovation, that stronger and broader property protections are always better, and that a digital economy could or should rest centrally on the commodification of information. Before 1997, critics of this common sense were not so much rebutted as ignored. After the rise of the open source movement backed by the intellectual work of the cyberscholars, they no longer could be, and that shift happened, in part, because of the widespread circulation of the romantic celebration of software creation as a form of personal expression.

And this may go beyond intellectual property. Property itself, as Carol Rose put it, traditionally has functioned as "the keystone right," in the American legal tradition, serving as the model for the very idea of liberty.71 As a consequence, property rights have tended to trump all other rights, such as free speech rights; the rights of the owner of the shopping mall or the newspaper generally outweigh the rights of an individual speaker who is visiting the shopping mall or working for the newspaper. This pattern has been embedded in legal decision making in the United States for most of the twentieth century. Yet, in the last decade, the open source movement has occasioned a rethinking of that impulse by demonstrating in vivid ways how overly strict protection of property rights can conflict with the rights of speech and self-expression. In time, the open source movement may be the starting point for a significant loosening of the link between property and other forms of freedom in the American psyche.