¶ 1 Leave a comment on paragraph 1 0 In a crisp essay, Milton Mueller has neatly debunked the grandiose claims occasionally made by both the supporters and opponents of open source software, that it is somehow a threat to capitalism in general. Mueller argues for a more pragmatic approach, which focuses on open source as a means to the end of individual freedom, not as an end in itself. This is entirely reasonable. But the very fact that Mueller can be effectively making that argument today is in part due to the romanticism, with all its grandiosity, that became attached to open source in the second half of the 1990s and thus propelled the phenomenon into the limelight. As of this writing, the world of intellectual property law remains turbulent and contested. But this contestation marks a remarkable change from the legal and political atmosphere of the early 1990s in which intellectual property expansion was imagined in the halls of power as inevitable and self-evident, as not worth arguing about.
¶ 2 Leave a comment on paragraph 2 0 Since the rise of the open source movement, essays sympathetically expounding the ideas of someone like Lessig or Boyle have appeared in mainstream outlets like The Economist. Business executives in many industries express an interest in a major rethinking of the patent system. Even the recording industry―once the leader in a hardline approach to copyright enforcement―is substantially softening its position. Some major record labels, for example, are now offering much of their content for download in a noncopy-protected MP3 format, an act that in 1995 would have been seen as childish folly. Open source software is now understood as a reasonable technical option in many contexts worldwide, and Linux continues to quietly spread, running on servers at web search firms like Yahoo, on cell phones made in China, on digital music players made in France, and on personal computers sold at Wal-Mart. In 1999, the original romantic copyright protectionist, Ted Nelson, open sourced the ongoing Xanadu project, “in celebration of the success and vast human benefit of the Open Source movement.”
¶ 3 Leave a comment on paragraph 3 0 The language of open source and its associated ideas, moreover, has been seized on in other domains. The use of the term open to refer to nonprofit decentralized efforts―the construction first seized on in 1997 by a handful of programmers as they groped for a terminology that would help legitimate nonproprietary software practices to business management―is now spreading throughout the polity. Not surprisingly, this trend began in technical areas. In 2001, with much fanfare, MIT reversed the 1990s trend in higher education of trying to commercialize educational materials and courses on the web by announcing what it called Open Courseware, an initiative to put all of its course materials online in a way that was free of cost and available to the worldwide public. A group advocating radical new approaches to radio spectrum management adopted the term open spectrum. (A White Paper describing the approach echoes Barlow in its first line: “Almost everything you think you know about spectrum is wrong.”) But the trend has expanded into areas where it is not just about technology. Advocates of decentralized, grassroots political action crow about the rise of “open source politics” during Howard Dean’s run for president in 2002 and 2003. Critics of mainstream media advocate and explore “open source journalism” as a more democratic alternative to conventional journalism. Brazil’s minister of culture―a former dissident and popular musician―cites both Lessig and countryman Roberto Unger as influences in his “Culture Points initiative,” which gives grants to local artists in poor areas to cultivate emergent local genres such as Brazilian rap music.
¶ 4 Leave a comment on paragraph 4 0 Someone like Esther Dyson might argue that these 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. 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.
¶ 5 Leave a comment on paragraph 5 1 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.
¶ 6 Leave a comment on paragraph 6 0 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. 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.