Guarding the Commons

Article: Guarding the commons: how community managed software projects protect their work. Research Policy 32 (2003) 1179–1198. By Siobhán O’Mahony.

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(author affiliation: Negotiations, Organization and Markets group, Harvard Business School, Baker Library West 186, Soldiers Field, Boston, MA 02163, USA)

Abstract

"Theorists often speculate why open source and free software project contributors give theirwork away. Although contributors make their work publicly available, they do not forfeit their rights to it. Community managed software projects protect their work by using several legal and normative tactics, which should not be conflated with a disregard for or neglect of intellectual property rights. These tactics allow a project’s intellectual property to be publicly and freely available and yet, governable. Exploration of this seemingly contradictory state may provide new insight into governance models for the management of digital intellectual property."

From the introduction:

"the types of threats that they defend against differ from the threats typically targeted with these legal techniques. First, I explicate attributes that open source software shares with public good and common pool resource models. Next, I discuss the research methods and mechanisms used to protect six community managed software projects. Analysis of these mechanisms motivates a discussion of the practices used to manage common pool resources. A conceptualization of open source software that more explicitly recognizes its collective governance is advanced. I conclude by exploring ways in which this conception might challenge existing assumptions about the nature of community managed software and inform future research."

Conclusions

"Findings: tactics to prevent proprietary appropriation

How do community managed software projects protect against the threat of proprietary appropriation?

I identified seven primary tactics:

(1) adopt software licenses with distribution terms that restrict proprietary appropriation;

(2) encourage compliance with licensing terms through normative and legal sanctions;

(3) incorporate to hold assets and protect individual contributors from liability;

(4) transfer individual property rights to collectively managed non-profit corporations;

(5) trademark the brands and logos designed to represent their work;

(6) assign trademarks to a foundation; and

(7) actively protect the project’s brand.

From the discussion:

"This research shows that contributors to community managed projects have interests and rights over their work, and that they are interested in protecting their intellectual property. The assumption that open source contributors give their work away must be modified in order to account for the ways in which community managed projects protect their work.

Moglen (1999), among others (e.g. Tuomi, 2000), have argued that Section (2)(b) of the GNU GPL creates a commons “to which anyone may add but from which no one may subtract.” Without the legal tactics identified in this study, open source and free software might be in danger of becoming a subtractable good. While the availability of open source software will not diminish with greater use, those who do not comply with the norms of the community could diminish its future value and its availability to others."

Discussion

Between public goods and common goods

"Contributors to the community managed projects in this study envisioned a long future working with the software to which they contributed. For example the Debian Linux Distribution project has been in operation for over nine years, has withstood six different leaders, and continues to grow with over 1000 registered contributing members. It is also clear from the tactics used, that contributors highly value the results of their efforts. Informants spoke of their contributions as investments in their future tools: they are creating code that they will never have to pay someone to use again. Because of the rights community managed projects exercise, it can be said that contributors pool their efforts to create collectively owned and managed resources. Furthermore, because the context of community is primarily on-line public forums, contributors’ efforts are highly visible, which facilitates the communication of norms and information that enables monitoring and co-ordination. These factors suggest that this is an environment that is conducive to developing mechanisms to help manage common pool resource problems.

These principles also point to some fundamental differences between common pool resources and open source software. Unlike common pool resources, open source software is always publicly available. Resources do not need to be redistributed or limited on any scheduled basis. What this analysis has established is that open source and free software is not quite a public good and not quite a common pool resource, at least, in the way these types of goods have been previously defined. The problem with classifying open source software as a pure public good is that this conception glosses over some of the more interesting features of community managed software projects. In neglecting to critically examine how old terms are applied to new phenomena, we risk misunderstanding the very mechanisms that may support its resiliency. Before despairing the introduction of murkier levels of complexity, consider von Hippel and von Krogh’s charge that “efforts to offer clean and simple models [of private and public goods] for research have excluded from consideration a very rich and fertile middle ground where incentives for private investment and collective action can coexist and a private-collective innovation model can flourish” (2002, p. 11).

In the case of open source and free software, this rich and fertile middle ground can be further explored by rethinking how the law is used to manage rights to digital intellectual property. von Hippel and von Krogh acknowledge a long understood tension in legal theory: the rights of innovators must be balanced with the rights of the public. Copyright protections are granted to allow investors to earn a return on their investment while also providing an incentive for innovators to disclose their works so that the public can benefit from them. This study suggests that the efficacy of copyright law in balancing public and private interests may be called into question when applications of the law are inverted in order to achieve its founding intent. An alternative interpretation is that, in an era of digital intellectual property, copyright law has untapped elasticity in facilitating new possibilities in unbundling and re-bundling rights and re-balancing public and private interests. If this is the case, it is paradoxical that explorations into the elasticity of copyright law have been most thoroughly explored by those least interested in restricting access to protected works.

Digital intellectual property and the creative application of traditional legal mechanisms enable community managed projects to decouple the ability to govern their work from its circulation and possession. This redistribution of rights has been difficult to conceptualize, as these rights are directed towards goals to which the commercial sector is unaccustomed. However, these mechanisms should not be under valued because of their ideological underpinnings. If we leave the world of political science and turn to computer science, the tactics used by community managed projects form what Stefik (1997a) might call a trusted system. A trusted system has rules governing the terms, conditions and fees for using digital works. In a trusted system, property rights are respected, but transport rights (rights to copy), rendering rights (rights for playing and printing) and derivative works rights (extracting, editing, and embedding protected works in other works) can be disaggregated and managed under different terms (Stefik, 1997b). Stefik argues that while publishers often think that digital technology automatically transfers more power to users, trusted systems can also be used to shift the balance and put more power in the hands of the publishers. Stefik thinks that one reason why this has not happened is because the social framework to support trusted systems is underdeveloped (Stefik, 1997a). While Stefik argues that technology is what can change the balance between publishers and users, it is perhaps ironic that those, who are among the most sophisticated users of technology, are using a combination of legal and normative sanctions to do just that."