Firstly, let me briefly apologise for the abhorrent lack of activity on MUW over the past three months. Blogging is time-consuming, and sometimes life is too, and unfortunately the latter has been the case of late. Expect posting to get back to normal over the coming weeks; no posts doesn’t mean no ideas and there is a colossal backlog of brainwaves. Watch this space!
Possession is nine-tenths of the law. In the past wars have been fought and families split over possession and the idea of ownership. However, this tenuous law is dependent on the idea that there is some value in ownership – the economic worth of property guides the idea that possession is valuable. People understand that the boundaries that surround owned areas and objects are respected by a sense of possession that we take for granted. In cyberspace, ownership is more ambiguous as spaces are owned or maintained in virtual areas that are often maintained for free. So how does possession work in a community with spaces and services provided free of charge?
In the late 1700s and 1800s the frontier lines were pushed west in the United States. Frederick Jackson Turner famously documented the scramble. He suggested that people collectively went against the wishes of the East-coast government who wanted to methodically take their law west. Instead, groups competed to take control of areas of land in an uncoordinated move that was guided by the determination of people to gain property, and in the wild west possession was the only form of law that was (generally) respected. The push west was, for the most part, ungoverned and chaotic, and was simply about gaining ownership of land before your rivals got there first.
Turner did not strongly document how the idea of ownership conflicted with many of the tribal beliefs of Native Americans, who did not have the same core concept of possession that the European settlers had brought with them. The concept of possession as nine-tenths of the law was brought from Europe, where only two centuries earlier the idea of “The Commons” had been for the most part abolished.
The Commons were areas of land that were publicly owned, and members of the public were free to graze their animals on, fish in, or take resources from these areas. The idea existed pre-Capitalism, before rights of ownership of private land began to be put into law in the 16th Century. There were some detriments to having common land (for example, land was often destroyed from over-grazing), but on the whole the commons served a purpose for communities. It was in this period that copyright law began to be conceived, with artworks and literature being closely guarded through rights of ownership claimed by the creators.
Eric S. Raymond made a comparison between the idea of The Commons and open source software in his 1999 book The Cathedral and the Bazaar. Raymond, who worked with on Linux in the 1990s, described customs of ownership of open source software as somewhat different to standard ownership. As open source software is free to use to anyone and open to all programmers to improve, it has some similarities to The Commons. People can improve the common land of open source code, can add to it, and can use its spoils freely. However there is still a system of ownership in play that is different from The Commons. Raymond wrote of the hierarchy of possession in open source, highlighting how the original producers of free software were usually regarded as the “true owners”. If an owner stops working on a project, the software can be taken over or passed down through rituals that seem to be naturally understood by the open source community, and the rules for this are rooted in the idea that possession is nine-tenths of the law.
The law of possession over the original source code for a particular piece of open source software is strictly adhered to by hackers and programmers who help to create it. There are rules for claiming ownership over all or part of a code in open source. Rogues acting outside of the rules (claiming possession of a piece of software without contacting the original owner, for example) can be ostracised by fellow hackers and programmers, who will no longer work with on projects involving the perpetrator. Raymond saw these laws as concepts that developed naturally throughout the hacker community in the 1970s and 1980s, and which have no source or statute. The rules seemed to just fit with the idealism of creating free software, and they have been passed down simply because they work well.
Yossai Benkler wrote of the value of open source in how it can change economic systems through new concepts in his 2006 book The Wealth of Networks. For users of open source software there is a very basic element of The Commons at play. Users who do not contribute to the source code are like farmers grazing their animals on common land. Many users choose to donate to projects like Apache, Wikipedia and others, and through this they too help maintain the open source landscape. The alternate ownership model has become the mainstay for free software available on the internet, and it is through public action that this software remains available and up to date.
A connected argument over possession has been raised in recent times in arguments over intellectual property. This property consists of ideas and information, and open source code would fall under the intellectual property banner. Images, text, artworks and ideas are also included in this umbrella term, and it is here that the debate has been contested in recent years. Intellectual property that finds its way online is often borrowed, as in the case of people using images from Google Search, for example. Images and other material that is taken without permission or is uncredited to the original creator often appears online (sometimes controversially), and this can create issues based on the same sense of proprietary ownership that hackers and programmers use. Torrents and free streaming websites take full advantage of this lack of permission, offering intellectual property for free, but their possession of this property is illegal under copyright law.
Certainly, the use of intellectual property (be it open source, art or otherwise) can lead to issues and arguments that have led to legal action, with an extreme case being that of Aaron Swartz earlier this year. Swartz firmly believed, information wants to be free, but was convicted after releasing thousands of books for free online that he had taken from the library database at MIT, where he worked.
Open source “law” simply asks the right of the original owner to be recognised for their work. In open source credit of ownership is the only real reward, and it is an etiquette that has become a rule in a new landscape of possession in cyberspace. Wikipedia is more used (and arguably more trustworthy by now) than Encyclopaedia Britannica. Gimp is widely seen as an adequate replacement for the expensive Photoshop; Firefox is one of the major success stories of the internet, and Diaspora continues to fight its battle to beat off business-oriented competitors and offer a viable free alternative to Facebook or Twitter. As these packages and programs are offered for free, there is nothing to halt their expansion. At the end of the day, they can be possessed and maintained by anyone. And possession, in the end, is nine-tenths of the law.
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