Friday, February 17, 2012

A Call for IP Credit Unions

A message on a technology user group mailing list by a National Guardsman caught my eye one day. He wanted to promote the use of OpenSource within the government institution. The incorporation of OpenSource software was simply his way of saying "we can improve the institution by leveraging publicly available technology."

In my opinion, he was correct. But it is fascinating that our public institutions have placed themselves into the situation of depending upon closed source systems for mission critical services, and it is worse that the public doesn't get substantive benefit from offering protection to these closed systems. 

Original Intent

Both standards like POSIX and old laws like copyright seek a balance of power between wealth creators and wealth beneficiaries. The intent was to ensure that the creator could use his or her creations for profit while blocking others from doing so in an unauthorized manner, for a limited time. After some finite time period, the intellectual content of the work would enter into the public domain.

Undermining the Original Intent

The Court's Role in Undermining Public Standards

I wrote before how the courts undermined public efforts to require platform standards. In a nutshell, UNIX was standardized under the FIPS procurement requirements as a set of standards called POSIX. The Coast Guard required substantive POSIX compliance for RFP responses; the courts said no: constructive non-compliance was okey-dokey by them. And thus, Microsoft Windows NT became a viable purchase option, despite the fact that its compliance was a farse.  

NT no more satisfied the meaning of the law than would have the court of clerk by filing court records of decisions in Mattenänglisch. Yes, it does have the sound "english" in its name, but it is not even remotely among the languages used in culture. 

Legislative Undermining of the Public Interest

The Berne Convention entered into force in the United States on March 1, 1989. Under the convention, a copyright to a creative work is automatic and need not be registered or even declared. Recently, courts and the legislature acted to harmonize the treatment of formerly public-domain works in the US which had claims upon them of foreign copyrights.

This is all well and good, countries making treaties that simplify and straighten out differences in law. It would all be great, except that copyright has been extended to the point that the public no longer appears to have an interest in granting the protection.

The DMCA was also passed in 1998 to add punitive sanctions on technologies if they could be used to bypass copy protection schemes. It has been used to arrest researchers. The DMCA's criminalization of scientific discovery isn't at all in the public interest but a prosecutor will use the tools available. 

Technology's Role

In recent decades society has become ever increasingly dependent upon software to operate, coordinate, communicate, and manage throughout business and private life. Yet software itself is not only highly complicated, it is intractably interdependent and highly sensitive to the conditions under which it is deployed. Wealth in the form of software is still somewhat difficult to create (though it is easier now than ever before) but it even easier to destroy - and this is a key insight.

The public offers intellectual property protections for software wealth, in exchange for a future promise of release of that wealth into the public domain, but the public gets virtually no benefit by (a) extending protections indefinitely or (b) allowing the grant of such protection when no demonstration is made of the surety that the wealth will still be there, at least in as much as could be guaranteed at a technical level.

Modern professional software craftspeople practice test driven development, change management, and revision control.  Services like GitHub make some of these processes transparent for open source projects. But custom development projects and packaged deployments by closed-license vendors offer no such fiduciary-like accountability.  This places institutions and organizations at a distinctive disadvantage as vendors get sold, go belly-up, divest themselves of core competencies, or merely lose interest in the business. 

A Co-Operative as an Equation Balancer

There are numerous examples of co-operatives in modern society, ranging from:
...and the list goes on. The question is not "do we need co-operative organizations," but rather, how can we leverage their future to strike a more even balance between private and public interests?  Co-operatives give the community the power to sanction those who abuse the trust, but also help its members create more wealth.  That sounds like a vehicle that could be leveraged to mitigate some of the corrosive influences of over-reaching copyrights and monstrous patents.

A Software Credit Union/IP Credit Union

Credit unions (CU's) arose around the 1850's in Germany, spreading through Europe and then the Americas around the beginning of the previous century. Organized around co-operative principles, CU's traditionally served poor and middle class populations, allowing them to pool resources and build wealth as a community. The movement was instrumental in providing microfinance, in a manner reminiscent of the resurgence in crowdsourcing today.

I chose the Credit Union as a model for two reasons. First, even if you don't include wetware, software is certainly one of, if not THE chief representation of wealth in our society. Try to run a phone without software, or a car, or a television, or a debit card, or a CAT scan machine... the stuff is, like, freaking everywhere. Software is the stuff of real wealth, the asset that literally makes everything go.

Second, while other forms of co-operatives may have application to this arena, Credit Unions best capture the concepts of investment and maintenance of assets with accountability and fiduciary responsibility. Software is an asset, and those who pay money or put out effort to maintain the software are making investments. Those that utilize software assets gain from their access to it. By combining the valuation of the software with a Github style accountability, such an institution could conceivably provide a means of implementing limited exclusivity and limited timeframes on licensing, while ensuring that the public's ongoing interest in protected IP is itself protected.

Finally, public institutions and small organizations with limited capital must finds ways to mitigate the concern that Open Source projects may not provide demonstrable support capacity. While it often seems that the promise of support by commercial software organizations is an illusion, and that they often over-price and under-deliver in this respect, companies such as RedHat would have no business model were it not for this one issue. My thinking leans toward proposing Software CU's as a means to organize and ensure support by constructively using the income of the CU to serve the needs of a broader community of businesses and individuals. Public institutions in particular, could require a levels of support that the CU could provide, and by investing their software projects with the CU the institution would be ensuring that it would not face a long-term imbalance of power due to one vendor's proprietary de facto ownership of the IP.

This is a work in progress. As I write, numerous other examples and overlapping concerns pop in and out like virtual particles, and the field of view suddenly seems as crowded as a deep field snapshot of a seemingly empty region of space. It can be overwhelming. Rather than continue to blather on, I proposed this as a discussion topic at the 2012 NCSU FOSS Fair
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