Works in progress: Jane Winn

Works in Progress IP Colloquium at Pitt. Program with abstracts and papers here (papers will come down some time after the conference, so that authors can revise). As usual, I focused on trademark and copyright papers to the neglect of patents, and had to make some tough choices. These are notes, not a transcript.

I was interested in the dean’s suggestion in her intro that works in progress conferences are part of the internet-pushed transformation of legal education, involving more outreach to new audiences. I hadn’t thought of it that way (and I also haven’t been teaching long enough to see a change), but I imagine that it can make a difference. People do show up at conferences with works in progress regardless, but perhaps we’re willing to take more risks with “WIP” conferences.

Jane Winn, Legitimate Authority in the FOSS [Free and Open Source Software] Community:

FOSS matters because certain FOSS products have significant market share (Firefox, Apache, Linux servers) – modest player in some big markets, major player in some niche markets. It’s also spreading as a model, to things like Creative Commons.

How she got into this project: Did a project for the Shidler Center for Law, Commerce & Technology (originally funded by Microsoft, but now abandoned by it) – lots of hostility from FOSS community because they were presumed to be Microsoft shills. At one level, that’s not true; at another, a conference on the commercialization of FOSS may have inevitable normative implications. They got three federal circuit court judges to do a moot court on the scope of the GPL, about which practitioners are desperate to have some precedent. If only they could actually have ruled! To get participants, they had to write a phony, pseudo-GPL to debate instead, and even then it was hard.

Why such anxiety? Practitioners didn’t want to support the Free Software Foundation because they think it’s wrong, but they didn’t want to say so in public because they were afraid of enforcement actions.

In the light of harsh questioning, the FSF’s more expansive claims for the license (pseudo-license) broke down. That’s why they don’t want a public debate.

GPL: Creates a huge problem of noise, because it’s a manifesto and not a license if you read it as a lawyer.

The reason the FSF fights so hard to suppress discussion about the scope of the GPL is that their claims are fragile. (Discussion of this on the U. Wash. Website, she says. The big problem relates to derivative works – if you have a commercial open source business model, how close can you get to the GPL product and make your program functionally integrated before you get too close? Many people want to leverage the market share of Linux for their own commercial products, relatively conventional proprietary software models. The FSF has taken different positions over time, but they suggest that proprietary software would often have to be made open source. The property contract/license dispute exists, but it’s not as important.) The FSF claims to speak for a large movement but the loyalties of the participants are tenuous. There’s a political constituency (people who want to challenge capitalism), a professional constituency (problem-solvers), and a commercial constituency (IBM).

Allegiance of tinkerers to Stallman’s agenda was initially quite weak. Now, the demographics are different – the political constituency is weaker, and the professional also weaker because the commercial constituency has jumped to ¾ of the community. Here the community is defined as including people who go to work and use Linux servers, who didn’t do anything to choose Linux.

Question: Why assume that the masses have any influence if they’re just foot soldiers? Answer: Because the FSF is so terrified of them. Commercial companies support FOSS because it gives them leverage against Microsoft, but they think the FSF is nuts – there’s a huge amount of hypocrisy. (Still not seeing influence from the 75% of the community that are mouse potatoes working on the servers. Maybe this analysis needs a fourth class, managerial or administrative.)

Theory of legitimate authority in the FOSS system, tracking Durkheim: Early hacker culture had norms though they weren’t formalized. It was tribal. Charismatic leadership emerged for FSF. Leaders have a calling to lead, and followers also believe. They’re strong as long as followers have personal ties. It’s very hard to routinize. This is Stallman!

Legal-bureaucratic authority: Linus Torvalds personalizes the shift to administrative organs with specified spheres of competence, hierarchical organization administered by officials. Big commercial groups can live with this type of organization. Torvalds is happy with commercial groups that interpenetrate with Linux.

Legitimate authority in the professional class involves work that can’t be fully commodified because it is specialized or requires discernment; neither market nor bureaucracy provide the right incentives.

Anglo-Americans are particularly deferential to professionals. Today, historical status professions like lawyer and doctor are being eclipsed by occupational professions (hairdresser, engineer, now separated by a difference of degree and not category because they both have control over specialized knowledge). Software engineering lacks many of the professional standards that other engineering has. Innovation professionals are therefore reinventing the historical moral mandate of professionals to protect the public interest into a mandate to maximize accountability to outside review.

Winn loves the Apache way: a culture of mutual respect for contributions. Aphorism in the Apache community: “Let Darwin Decide”: put your proposals out and remain sensitive to the responses you get. Apache might be able to survive and grow, but it might also be limited to the people who are very committed to it now – their model is psychologically intense.

The GPL isn’t incompatible with outside accountability, though the FSF isn't accountable. The new GPL revisions expose the fragility of the FSF’s sweeping claims, which are going to split the community. Corporations can live under modified reciprocal licenses if they’re not on the receiving end of FSF enforcement actions. Right now, they have to act as if they’re complying fully with the FSF's interpretation, which raises the cost of doing business – it creates uncertainty about the implact on of FOSS on the value of other IPR, and uncertainty about their rights to integrate proprietary products with GPL products.

Basically, early governance structures are ill-suited to present commercial reality. Can a new model of innovation professionalism replace the combination of charismatic leadership and commercial acquiescence that exists now? Winn doesn’t know, but she hopes it can.