[-empyre-] Week Three - Open Access

Julian Oliver julian at julianoliver.com
Sat Jun 19 12:03:37 EST 2010

..on Fri, Jun 18, 2010 at 12:10:31PM +0100, j.martin.pedersen wrote:
> Hi,
> I am not supposed to contribute here
> However, I felt I had to chip in since this discussion tends to expres a
> problematic, conceptual conflation between structured and unstructured
> commons.
> Open Access is not really a movement, but a simple concept (or a
> cultural phenomenon): no structure, just take as you please. Roman
> lawyers called it res nullius: anyone can appropriate as they see fit.
> The Free Culture movement, of which the most notable example is Free
> Software (of which Creative Commons, Wikipedia etc. are derivatives), is
> not about open access. On the contrary, Free Software is a highly
> structured commons that is based on the concept of Copyleft, which is
> articulated in its particular form for the purposes of software in the
> GNU General Public License (the GPL), which, in turn, is based on
> copyright, which, in turn, is based on private property rights: the
> right to exclude.
> The right to exclude is used in the GPL to articulate the conditions
> under which you can share freely, but in the moment that you do not obey
> the specific conditions (i.e. if you do not act according to the
> structures of the commons) you will be excluded from the commons - in
> other words, the basic element of private property rights, namely the
> right to exclude, comes into play when you act id discord with the
> structures of the commons (this happens - in legal practice - by the GPL
> simply reverting to default copyright if someone disobeys the
> distribution terms - the structures of the commons - that are
> articulated in the GPL).
> Free Software - and the Free Culture movement - have developed
> sub-clauses to copyright. To discuss these sensibly require
> jurisprdential analysis and a grasp of the surrounding political economy.
> Open Access, by contrast, is simple a "free for all" or an unstructured
> commons. Open access is what the world is to capitalists in their wet
> dreams: free to appropriate under no conditions or limitations. A lack
> of organisation that works in a world of affluence and when riding on
> the surplus of capitalism and tenure tracks.

.. and this is the BSD family of licenses, right here, the
(shoot-yourself-in-the-foot) backstory of why there's so much antipathy from the
BSD community toward Apple, amongst others. 

The GPL is certainly a kind of patch, a legal patch designed to protect authors
in a litigous and economically cannibalistic environment. It is not a solution,
in the intrinsic sense, rather a very well engineered medicine. Without the GPL,
much of the Internet, as people enjoy it, would simply not exist. 

However, rather than considering the GPL within the context of "the right to
exclude" it is perhaps more constructive to consider the cultural underpinnings
of the GPL as built around a model of Socially Productive Selfishness, ie "I
defend the right for you to read, modify and redistribute this (technical and
cultural) work as long as you agree to protect my right as Author to assign
these (social and selfish) rights in turn."

'Copyleft', as popularised by Lessig, is not a good reference and is far from
the roots of the GPL as a model. 'Copyleft' is a term that implies a pole
position to Copyright, which the GPL is most certainly not: the GPL is merely a
pro-copy-Copyright license, in itself.


Julian Oliver
home: New Zealand
based: Berlin, Germany 
currently: Berlin, Germany
about: http://julianoliver.com

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