Yesterday was an interesting day, interesting because the day threw up a lot of questions, the answers to which I am not sure of (which would mean I have something that resembles an answer), but the very questions have pointed me to another rich area of (potential?) research. I am pretty sure mine may not be the first head in which these questions have popped, yet that doesn’t stop me from relishing the questions or the fact that these questions managed to pop in my little head*.
These questions/issues that I refer to, popped yesterday as I was attending a seminar on “Software Patents and the Commons” arranged by the Software Freedom Law Center (SFLC) along with the Centre for Internet and Society (CIS) in New Delhi (I was pleasantly surprised to bump into the ever-cheerful Pranesh Prakash). During the course of the seminar, there were quite a few presentations, notably by Prof.Eben Moglen, Professor of law and legal history at Columbia University, Dr.Abhijit Sen, Member of the Planning Commission, and Venkatesh Hariharan, Corporate Affairs Director of (or at?) Red Hat. (Unfortunately, I didn’t have the pleasure of listening to Pranesh because I had to rush back to attend to something else)
The commonality in most of the presentations seemed to me that the Open Source way of doing things was presented as not just one of the alternatives, but the only “alternative”, in fact the only way of doing things. I really wouldn’t claim to be someone who is familiar with the literature on Open Source, therefore my questions/doubts are that of an uninformed but certainly not uninterested student of the jurisprudence of property and innovation, who wishes to set aside the literature for a moment and merely embark on understanding the implications of the Open Source model through questions and questions alone.
Since only questions are being relied upon to understand the model, it is imperative that one asks the right questions. But how do I know if they are right? I guess looking for internal consistency in the questions is one of way of staying on the right track.
Prof.Moglen in his talk spoke of property/power/ownership as a model which encourages creation of islands of exclusion which inhibit learning, whereas the Open Source model was spoken of as an “inclusive” model which encourages learning (these days a rather fashionable buzzword “inclusive”, isn’t it?). Prof.Abhijit Sen, an economist by training, however pointed out that the Open Model, in a way, is an anarchist model where there’s too much of free movement for every participant, ultimately leading to chaos, which he calls as the real tragedy of commons.
In other words, there may be a shared vision with respect to long-term goals regarding the methodology of innovation, but there may not be an agreement on the specifics of the immediate goals to be achieved (not necessarily “short-term goals”, because the word short-term somehow carries negative connotations of being short-sighted). Therefore, the concept of a collective/shared interest with regard to a specific task on hand is what Dr.Sen perceives to be as one of the primary and cardinal hurdles of the Open model.
To this however, Venkatesh Hariharan’s talk seemed to be an unintentional counter. He quoted a few numbers, such as the number of super computers in the world running on Open Source OS, to prove the reliability of products of Open innovation and the ability of unconnected individuals to work together on a project. This is ironic considering the fact that a few proponents of Open Source often scoff at empirical evidence from the “other camp”, and seek logical answers, but when it comes to proving their own “efficacy”, numbers/statistics seem to be their first resort…
Now, throughout these presentations, it was emphasised over and over again that “Ownership” looks at innovation as a secluded process which results in exclusion of a large section of the community. But ironically again, what was noticeable was the single-point approach to Open innovation itself in the sense that Open movement seems to define its identity through the prism of Ownership, as opposed to adopting a holistic approach. Not just that, it focuses or probably chooses to focus on certain aspects of “Ownership” to portray itself in a better light, in the process losing sight (deliberately?) of an entire gamut of issues/perspectives which “Ownership” has spawned and has devised remedies too.
And this is not because these issues do not arise in the case of the Open model; in fact, they very much do and yet the seminar gave one the impression that the Open model may not be equipped to address these issues, as yet (Dear Readers, please do not hesitate to fling or hurl any piece of gentlemanly literature which renders my observations “blanket” and proves me thoroughly and incontrovertibly wrong)
Now what exactly are these issues? Why are they “issues” in the first place? Ownership is probably creation of a controlled island of innovation; however ownership unfortunately does not have the luxury of focussing only on innovation. Along with the “rights/property”, come “duties/liabilities” (duties and liabilities although imputed with slightly different meanings, find themselves clubbed on the same face of the Hegelian matrix of interest, hence the interchangeable use). The duty to answer to a third party interest which is affected by the product of innovation comes with the right to property; such duties could broadly be categorised as “rules of liability”.
How does Ownership respond to such liability? How does it decide where the buck stops? How does a corporate identity help in addressing such issues? Although innovators are natural persons, Ownership/corporations ultimately hold the rights in the products of innovation and a corporation responds as a unitary entity to an allegation or a liability. It does not sit and rack its brains on apportioning the blame on to each innovator. More importantly, “Ownership” needs public acceptance, which requires it to address issues of liability in a fair manner. In a way, the interests behind “ownership” ensure that it continues to remain in the good books of the consuming public.
On the other hand, in an Open model, the user is encouraged to create and innovate further with the ostensible goal being greater learning, but then the “other” reason could be a hands-off approach to liability. Take for instance the unsuccessful defamation suits against Open innovation-based organizations like Wikipedia, which are thrown out on grounds that the content is “user-generated”.
Atleast in the case of Wikipedia, there are ways of ascertaining the culprit, but what about Open innovation in other fields? How do I know who is responsible for a particular cause of concern? After all, I should be in a position to bring him to justice. If self-regulation is propounded as the answer, I would be too naive to take that as an answer because if the exhortation is to not trust “Ownership” (which atleast makes itself accountable in some form), why should I believe open-innovation where the buck can stop at eternity if the chain of participation is long and snaky?
Furthermore, the sheer scale of (anonymous?) participation is precisely the reason that self-regulation is not an acceptable remedy for addressing “liabilities”. I am alive to the answer that:
“Look, “Ownership” has been here since time immemorial! It has had the time to evolve, but Open model is young, you can’t really expect all the answers now! It is unfair!!”
Fine, but then “Ownership’s” counter could be:
“Look, you are the one who keeps touting your numbers all the time to show how rapid and deep your penetration into the society is, although I don’t know how these numbers have been arrived at!! Be that as it may, your ostensible depth and reach make it absolutely imperative on your part to come up with convincing and realistic solutions/rules of liability before it gets out of hand! Peter Parker’s alter ego says “With Great Power Comes Great Responsibility!” I am asking you to follow Spiderman! It is totally fair!! After all, I speak for public interest and mind you, I am a tested and proven model for all your alarmist declarations! You don’t trust me? I have empirical evidence to prove my point!!!”
I am sure I could be light years off the mark, so comments (particularly acerbic, caustic ones and their homologues) are welcome.
A closer look on rules of liability for the Open Model shall follow soon.
P.S: *(Which is why, somehow one can never consciously take credit for an idea is what I am increasingly beginning to think or believe, because most ideas seem to germinate subconsciously like a voice in your head talking to you in the third person. However, what one can probably take credit for is articulation of these ideas because articulation is a conscious act, rather process, impromptu if I may say so, with the mind being the doer and the witness (but does the mind initiate and do, or first do and improvise?) The final expression of this articulation in writing or in any tangible form or in the form of a product/process is shades more refined and is obviously more of an after-thought whose purpose is to rationalize the idea- LIBERALLY INSPIRED by “INCEPTION”)
Sai,
your doubts are completely conceivable- at some point of time.. when a dear friend of mine (who left law.. now to become a entrepreneur!)and i one day picked up our laptops and said – lets write on copyleft and Open source.. trust me.. we dint pen one word.. may be out of laziness to exercise our minds!!!
now that i think i understand IP better than i used to, I feel that as presently, both could co-exist! for someone who is comfy with Open source.. may promote and propogate OSS, for others.. please use licensed copies!! i also agree that with greater power comes grter responsibility!
Further, i see an “oxymoron” here.. software patents and the commons? I always thght that perhaps GIs were the only true right of commons!!! who is the “pater families” here? further,
I thght Patents were monopolistic.. with public policy acting as a balancing metaphor in excruciating circumstances..
honest, I have not been able to convince myself of a good enuf reason for software patenting- I ofc understand that it is to acquire an absolute right to something created.IMHO, the copyright protection creates a good balance- for one you have fair use and second, the idea-expression dichotomy
i attribute my ignorance to not knowing software well enuf (rather.. very lil interest!) and also the fact that my rudimentary knowledge of patents doesnt find a clear place to accomodate the various principles governed by patent law, vis-a-vis software..
I shall be humbled to understand that perspective in greater detail too someday!!!
Thanks for the comment Divs. I think you could be right, probably both are needed to keep the other in check. As for software patents, I am still not clear in my head about the flow of logic and policy perspectives; when I do achieve clarity, i’ll share my thoughts.
Bests,
Sai.
Sai.. i feel much better.. thank u!!! 😛
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