Alchemical Musings

Last week I reflected on the Everyblock.com acquisition. Since then, Knight’s journalism program director has blogged about their perspective on the sale, and some great conversations have continued.  I have also had a wonderful opportunity to discuss the purchase with Christopher Mackie, a program officer at the Mellon Foundation. Chris is the Associate Program Officer in the Research in Information Technology program and is closely involved in Mellon-funded software initiatives.

Here are some excerpts from our conversation:

JB: Thanks so much for taking the time to share some of your thoughts on the recent purchase of Everyblock. As you know, Everyblock is a foundation sponsored, open-source journalism startup that was recently acquired by msnbc.com. Even though the Knight Foundation mandated that all the software they funded was released under an open (GPLv3) license, the future openness of this application is now uncertain. As an important funder of many valuable open source software projects I am wondering if you could share your reactions to this news? How do you feel about the outcome? Did the deal take you by surprise?

CM: Hi Jonah – good to talk with you! Before we start, let me be clear about a couple of things. First, I don’t speak for the Mellon Foundation on this, so all I can share are my own views. Second, I’m by no means the most knowledgeable person around when it comes to intellectual property issues. In fact, I can find several people who know more than I do without even leaving the building at Mellon. What I do have is a particular perspective on IP issues that has been developed in large part from my work with our information technology program. I hope that my perspective is useful, but I wouldn’t want anyone confusing it with either an official Mellon perspective or some sort of consensus view among experts. As far as I can tell, consensus only exists among IP experts on issues that no one cares about.

That said, as I follow the conversation, what appears to be happening with Everyblock is that a number of people are seeing for the first time some issues that have been seen before in other parts of the software space. In the process of thinking through the implications of those developments, they’re reinventing old arguments, most of which are insufficiently nuanced to be valid. Eventually, they’ll work it out, but right now, many people are still looking for too-simplistic answers.

JB: This moment is such a great learning opportunity to teach grantmakers and journalists some really important lessons about Intellectual Property, and the complexities of Open Source software, community, and culture – is there anything specific you think we can learn from this transaction?

CM: Rather than try to parse the many issues individually, let me just suggest a couple of basic principles that I use when I’m trying to advise projects on licensing issues:

First, “the context is more important than the license.” The debate over BSD/GPL tends to take place at a very abstract, ideological level. This is the wrong level: when it comes to licensing, I believe that you really need to get down and grub in the dirt. Licensing decisions are almost always made better when they’re made in a carefully contextualized fashion.

The single most important contextual dimension I know concerns the “organizational complexity” of the product. That’s my own, made-up term to describe the need to integrate your project with other organizational systems, human and software. Organizationally complex software requires significant adaptation or customization in most installations – which implies the need for significant vendor involvement in many installations. A good example of an organizationally complex system is something like a financial system, which tends to have to connect to all sorts of other software and to interact with all sorts of human workflows. Good examples of organizationally simple software are things like a Web browser or a word processor, which ought to work out-of-the-box without any customization or integration.

If you have an organizationally complex product, BSD licenses tend to work better than GPL. Why? BSD licenses don’t scare off the vendors who have to poke around the insides of the product in order to support it, and who worry that their private IP may be compromised by an accidental contact with a GPL’d product’s innards. I’ve seen the arguments about whether this is actually a valid concern, by the way, and I’m not particularly invested in learning the right answer, if there even is one. As long as vendors believe or fear it to be true – and many do – then it might as well be true. Without vendors, it’s hard for an organizationally complex project to thrive, so BSD tends to win out in those sorts of projects.

A second dimension concerns the degree of “market power” held by the users. Market power depends on the ability of users to recognize themselves as having shared interests and then to act on those shared interests. A user community that has market power can issue a credible threat to punish a misbehaving vendor; one lacking market power, cannot. This often isn’t a simple determination; for instance, consider Mozilla. At the core of the Mozilla community, as with most open source communities, is an intense, dedicated group that sees itself as having shared interests and clearly has the will to punish someone who attempts to misuse the Mozilla IP. But do they have the ability? After all, they’re only a tiny fraction of all Mozilla users. The rest are a widely distributed, diffuse group that would never imagine themselves as having much in the way of common purpose, beyond the desire to have a free Web browser. Which constituency matters more in calculating market power? It almost certainly depends on the context.

Some people object to the phrase “market power,” preferring terms like “strength of community” or “trust.” I’m not too worried about what one calls it, but I will say this: once you get past the rhetoric, it mostly boils down to the community’s ability to deliver a credible threat to punish a malfeasant vendor. If the user community ceases to value the project enough to want to defend it against vendor malfeasance, or ceases to be able to act together effectively to deliver that defense, then, however much they value the project individually, it is unlikely to stay open no matter the license.

There are other dimensions to think about, too; for instance, a project having multiple vendors is safer than one with only a single vendor, or none, because non-colluding vendors tend to act in ways that keep each other well-behaved. But those are the biggest two, in my experience so far.

Earlier, you brought up the Sakai and OpenCast projects, both of which have been funded by us (and by other foundations, such as the William and Flora Hewlett Foundation, as well). I believe that these two characteristics are why Sakai and OpenCast, as well as other community source projects, are able to use BSD-style licenses (they actually use the Educational Community License, or ECL, which is almost-but-not-quite the Apache license). Community source software projects produce organizationally complex products deployed by a coherent community of institutions willing and able to exercise market power if needed. For instance, the community of higher education institutions seems to have no trouble understanding their common interest in keeping Sakai’s IP open, even if they’re not Sakai users themselves–and as a group, they seem to have the will and ability to punish vendors that attempt to misbehave. Most vendors sell more than one product into these institutions, so they stand to lose more than they can gain from bad behavior on any single project like Sakai. The result: there is virtually no evidence of significant vendor malfeasance in any of the community source projects, despite the use of a license that in theory allows any vendor to close the code at any time. The closest you can find is the Blackboard patent dispute—which is a challenge to the ownership of the IP, not its licensing, and in which Blackboard has been careful to steer clear of any direct threat to the Sakai community. But would every vendor’s good behavior continue if the community stopped caring about Sakai? I seriously doubt it.

On the other hand, if you have a product which is organizationally simple, as well as having a relatively powerless user community, then get thee to the GPL, because the temptations to steal and close the code just become too great for some vendors to resist. We’ve seen some examples of that, recently, too. Still, don’t believe that the GPL will protect you if your community cannot or will not. If the community is weak enough, nothing can really protect you.

Second, “IP ownership trumps IP licensing.” Some of the commentators on Everyblock that I have read so far are circling around this point, but none has yet followed the logic all the way. All the debate over licensing tends to obscure the reality that final power lies in ownership, not licensing. For a surprising number of situations, licensing is little more than a red herring.

If I own the code, I can issue you a GPL, someone else a BSD, and yet another license to a third party–take a look at the Mozilla licensing scheme sometime, for an example. If I’m also responsible for updating the code, I can change the license to all of you at any time simply by issuing a new version. Sure, you can still use the old version under the old license, but if I really want to make it tough for you to keep using the old version, there are ways. Finally, as you’re seeing with Everyblock, when someone owns the code privately, there’s nothing that prevents someone else from buying the code – often by buying the firm itself – and changing the licensing terms.

I have no insight into MSNBC’s plans for Everyblock. Maybe they’ll close the code; maybe not. Maybe they’ll keep something open but close the commercial services they build on top of it – I don’t know. As your commentators have noted, no one seems to know – and that’s part of the problem with privately owned but open-licensed code. You just never know.

That’s one reason why I tend to be wary about the “commercial OSS” model, no matter what license it uses. In many commercial OSS projects that I’ve seen, even the GPL is effectively just a cover for what is to all intents and purposes a closed code-base, because the owner/vendor is the only entity on earth that has any realistic likelihood of supporting or extending or developing the code further. Ask someone in the MySQL community how protected they feel by their license – or ask the people using Zimbra how they expected to fare if Microsoft bought Yahoo. It’s not about whether the current owner is good, bad, or ugly; it’s about the fact that you can never know whether it will be the same owner tomorrow. That’s a lot of uncertainty on which to base a mission-critical technology choice.

JB: So, given the diverse range of contexts you describe, what specific strategies have you deployed to mitigate these risks?

CM: Good question – and it’s important to emphasize the word “mitigate,” because there are no guarantees and there’s no such thing as absolute effectiveness. One thing we do in our program is to use IP agreements (a contract with the owner of the code to be developed) that require any transfer of ownership to be to an entity which must also agree to the terms of our IP agreement. In a sense, we make the ownership viral, whether or not the license is viral. That’s not a perfect solution, but it appears to be working for us so far.

It also helps that we make our grants to non-profit organizations, which can’t be bought the same way you can buy a private or publicly held firm. When for-profits are involved in our grants, which sometimes happens when grantees decide to contract with for-profit developers, my program (Mellon’s Program in Research in Information Technology) has always required that the non-profit be the IP owner. We are not alone in this; for instance, when several major technology corporations—all for-profits—decided to share and protect some of their own intellectual property in an open environment, they didn’t trust it to a for-profit, but instead created the Eclipse Foundation, a non-profit that owns the Eclipse Project IP. Ditto the Mozilla Foundation.

Still, it bears repeating that just putting your IP into a non-profit mindlessly doesn’t eliminate the risk, because it matters how the non-profit is structured and governed: nothing says a non-profit can’t be malfeasant, too, if in somewhat different ways.

JB: Do you think that the Knight Foundation was swindled? Did they get outfoxed by msnbc.com, or do you think they are happy with this outcome?

CM: I have no knowledge about what the Knight Foundation intended – has anybody bothered to ask them? [ed note: this conversation took place before Knight made a public statement] I think it would be foolish simply to assume that the grant makers have been outfoxed by this development: it may have been exactly what they wanted, or just a risk they decided beforehand that it was worthwhile to run. Keep in mind, too, that MSNBC hasn’t said or done anything about closing the code so far. Even if the Knight Foundation did want perpetual openness and the strategy wasn’t perfect, there’s still a chance that they’ll get what they wanted.

All that’s really happened here is that the sense of security held by at least some members of the Everyblock community has been shaken by the purchase news. But it was always a false sense of security; at this moment, as far as I can tell, nothing objective about the openness of the project has actually changed.

JB: Do you have any closing thoughts about this deal, or what you think grantmakers and open source advocates can learn from it?

CM: If Everyblock serves to help some members of the openness community to get past their ideological blinders and recognize that IP ownership and licensing decisions are subtle challenges with relatively few simple, definitive answers, it will have done some good. After all, even the best source code is relatively ephemeral, but we can hope that such wisdom will last forever.

JB: Thanks so much for your time and wisdom. I know alot of people who were quite surprised by this turn of events, and it feels like we all need a crash course in IP law /and/ sociology to navigate the intricacies of this political economy. Even veteran lawyers and free software evangelists are often confused by many of these complexities. I really hope that this case and your analysis will better inform future work of this type. Good luck keeping it open (and real)!

CM: Thanks very much. I hope what I had to say is useful.

Filed by jonah at 11:10 am under earth,epistemology,ethics,freeculture
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This season Fox premiered a new television series called Mental (this post has nothing to do w/ AMC’s fabulous Mad Men):

a medical mystery drama featuring Dr. Jack Gallagher, a radically unorthodox psychiatrist who becomes Director of Mental Health Services at a Los Angeles hospital where he takes on patients battling unknown, misunderstood and often misdiagnosed psychiatric conditions. Dr. Gallagher delves inside their minds to gain a true understanding of who his patients are, allowing him to uncover what might be the key to their long-term recovery.

The show’s format (very) closely resembles the hit TV show House, except that Mental is set in a nuthouse. The show has received lukewarm reviews and mediocre ratings, but very well might get renewed. Mental health consumer advocates like (pharma funded) NAMI have not reached a consensus on how to respond to these pop culture representations, and even the some of the radical Icarus Project’s membership were (initially) impressed by the show’s message.

While this show might seem innocuous, it really deserves a careful, critical analysis. We seem to be approaching a turning point in perceptions around altered states, as powerful marketing forces are hard at work working to remove the stigma around mental “illness”.  Brittany Spears was the unpaid celebrity spokesperson for the normlization of psychiatric crises, but Glenn Close will soon be leading up the BringChange2Mind campaign.  Don’t get me wrong — removing stigma is generally a good thing, but if the stigma is removed in order to increase the legitimacy of pharmaceutical treatments, the message (and outcome) is mixed.  We are all dying, sick and crazy.

I am reminded of a fantastic book I read last year called Freaks Talk Back: Tabloid Talk Shows and Sexual Nonconformity.  In this work, Joshua Gameson examines hundreds of hours of trashy talk show footage from the 80’s and 90’s – Ricki Lake, Montell Williams, Phil Donaue, Jerry Springer, the works. During the period examined, LGBT guests were featured regularly on these shows, amongst some of the first representations of gay people in mainstream popular culture.

Gameson closely studies the controversy around these appearances. On the one hand, the guests were not always portrayed in the best light (to put it mildly). These shows thrived on sensational confrontations and humiliating storylines. On the other hand, alternative lifestyles were being featured and discussed on national television, and beamed into living rooms across the country. Is there ever such a thing as bad media?

What Gameson teases out of his exhaustive study are the subtle underlying ideologies these encounters embody. While homosexuals were often defended by the talk show audiences, trans and bi guests were often vilified.  He makes a convincing case that these shows endorsed monogamy and static identities, but were decisively hostile towards alternative lifestyles and choices that veered from these mainstream values.

Our critical “Mental” challenge is all about trying to tease out the underlying ideologies and unquestioned assumptions that permeate the storylines in this series. On the face of it, Mental offers a diverse range of voices and perspectives — from financially-motivated hospital administrator, to the confrontational interns, to the purportedly radical director – Mental gives watchers the impression that the mainstream is being represented, and challenged.

Consider Dr. Galleger’s establishing introduction:

Establishing Dr. Gallager from Generic Prescriptions on Vimeo.

He certainly seems like an alternative psychiatrist, who will do anything to help his patients. He even goes on to insist that patients participate in the staff meetings:

Medical Deities from Generic Prescriptions on Vimeo.

… a device that disappears immediately after its introduction. It doesn’t even come up in later meetings in this pilot, never mind later in the series. Here is the next meeting, where the shows truer colors begin to shine through – Drugs for life, no hope of a cure, and the problem lies with pharmas old drugs, like Haldol, but their new miracle treatments are a panacea:

He's gonna need drugs from Generic Prescriptions on Vimeo.

The rubber really hits the road in S01E04 (Manic at the Disco) — about a young boy named Conner who is eventually diagnosed with pediatric bipolar.

Elective Mutism, Conduct Disorder from Generic Prescriptions on Vimeo.

The attending staff discuss Conner’s case and authoritatively toss around dozens of diagnoses, never questioning the legitimacy of pediatric bipolar — a diagnoses that is currently hotly debated, and does not (yet) even exist in the DSM!

Conner's Diagnosis from Generic Prescriptions on Vimeo.

“There is no cure, as such”

There is no cure, as such from Generic Prescriptions on Vimeo.

and of course, “you can’t ignore the symptoms.”

You can't ignore the symptoms from Generic Prescriptions on Vimeo.

The decisive “evidence” of a broken brain was a brain scan – a technique which is highly controversial, profiled in the Frontline investigative piece The Medicated Child.

So much for alternative psychiatry.

Don’t get me wrong, I am in favor of treating people instead of bodies, but the psychiatrists on Mental still treat brains instead of minds.

I’m not sure if this kind of publicity is fooling anyone, but I am afraid it is. As folks like smartmeme describe, narratives are often far more persuasive than stats, facts, or logic.

We need to keep a close watch on shows and campaigns like these, that implicitly establish a baseline acceptance of disorders and treatments when there are vibrant alternatives to consider. People cannot make informed choices about their mental health if the questions they are deciding are deceptively framed. Mental is far more insidious than its seemingly innocuous plotlines and banal characters suggest.

[For more critical clips from Mental S01E01 and S01E04 see GenericPrescriptions].

Filed by jonah at 9:53 pm under dangerousgifts,ethics,fire
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Heh.  I enjoy a nice long weekend off, and a few of my worlds collided while I was away…

This weekend msnbc.com snatched up the Knight Foundation funded everyblock.com project, and now a bunch of people I know – from  journalism, free software, law, and software development are all talking about the ethics and implications of choosing different Free/Open Source licenses for grant funded projects and experiments in sustainable journalism 😉

The Knight Foundation has been funding innovation in technology and journalism for a few years, and lately has been mandating open licenses for all the code and content they sponsor.  Knight is not alone. Mellon, Hewlitt, OSI, NSF, NIH, and other grantmakers have all begun to encourage that the IP they fund be as open as possible (to varying degrees).  Seems obvious.  If you want to maximize your philanthropic ROI, make sure that the future can extract the full potential of the work you fund – not be shackled, stifled, or duped by the misapplication of intellectual property.

I continue to be hopeful that pressure from funders might represent a tipping point for openness.  Many organizations need bunches of carrots to overcome their knee-jerk institutional momentum to horde – even if sharing costs them nothing (in dollars, labor, or resources, although sometimes transparency can take its toll on egos).

But is all openness created equal? No way am I going to attempt to recreate the great BSD-GPL wars in this post, but I will say that it stings every time I hear someone accuse the GPL of being viral (are vaccines viral?).  I also wince every time I see a vibrant open source community make an argument against the GPL – I have seen this happen around Sakai, OpenCast, and even lately around around Plone and its plugins.

[From my perspective, its the purportedly unencumbered communities that are really viral, as they continue to ratchet down GPL communities to lowest common denominator licenses, by whining about how they can’t use GPL code (which they can, provided they share-alike).  But don’t take my word for it – ask Zed why he (A/L)GPLs.]

To me, first and foremost, the GPL signals trust. As I understand it, this legal instrument has helped enable institutions and individuals, large and small, to trust each other, without fear of being stabbed in the back or being taken for a sucker. In the end, the GPL is just a license, and while it has been increasingly taken more seriously, enforcement is never fun (except for lawyers, I guess).

Eben Moglen is the founder of the The Software Freedom Law Center and also the author of GPL, but their firm can’t officially shill for the GPL. They care enough about freedom to continue to help any open software communities in need, but I sometimes wonder how they manage to bite their tongues and not scream We told you so or We warned you. Some of these same communities who have scorned the GPL have had to turn to the SFLC to bail them out when they got attacked by patent sharks. Perhaps the Everyblock story will serve as a cautionary tale, and people will learn to start taking the SFLC’s legal advice seriously. I believe that history will show that it was the GPL that ultimately averted Microsoft’s monopoly – no license could have accomplished this without the boundless energy and will of the open source developers, but the GPL was the pentagram restraining a very bad actor.

But not everyone sees the world this way, and there are other valid perspectives.  In conversations I have had with Jacob Kaplan-Moss (who co-founded Django, alongside Everyblock’s Adrian Holovaty) Jacob voiced a strong conviction that transparency, openness, and sharing are better ways to develop software, and that those values ought/need not be legally mandated. He prefers to participate in a community where those values are understood and shared.  Some might call his perspective slightly naive (while others might trace some of these attitudes to the roots of Django and the proprietary journalistic corporation that birthed it), but James Vasile makes a very similar point:

It might be disappointing that MSNBC.com can close-source Everyblock, but we still have the code. If the code is valuable to the community, we can take the last published version and use it as we want. If MSNBC.com trades a healthy free software project for a proprietary development cycle, we’ve lost nothing, and MSNBC.com has thrown away the most important asset they had– the community behind and around the code.

As for the future of Everyblock, I am am still hopeful that rationality will prevail. Everyblock runs on an incredibly sophisticated stack of open software – python, postgres (with GIS extensions), django (or something very, very similar), and msnbc.com will not get very far with this software without engaging these communities. In the 21st century, owning code is a liability, not an asset. Sure, they can try to leech and poison the well, but they will meet with pretty staunch resistance – trouble hiring programmers, getting their patches accepted, maintaining and upgrading – good luck going it alone. They will end up with the IE of hyperlocal news websites.

I also don’t think it’s necessarily evil for a corporation to participate in this ecology, or for funders to seed new user interfaces or patterns, and then hand off the innovation to capital. Sustainability is really quite complicated, especially was we embark on hybrid economies. And on the open side, it can be difficult for funders to keep software honest.

If Everyblock has a real value right now, its in the relationships they have forged with the data providers, and the effort they put into scraping and formatting this data. What we want from them now isn’t just an open platform, its also open apis, to get at the data they are collecting and harvesting. Code is only one corner freedom’s jigsaw puzzle. Never forget about the data. And, I am not really sure what Knight could have done to better protect the future openness or integrity of that data.

Filed by Jonah at 12:54 am under earth,ethics,freeculture
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