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A critical overview of the digital knowledge commons from a Marxist perspective.

Introduction: Putting the 'Commons' Back into 'The Knowledge Commons'

If knowledge is viewed as a collective endeavor, rather than just an individualized, cognitive exercise, the notion of a knowledge commons becomes a key form of social organizing. As Fuchs (2012) explains, 'commons are resources that are essential and basic for the survival of a society, that all need, and that are produced by all' (403). Going beyond a traditional understanding of commons as land and resources, a knowledge commons involves collective, cumulative informal experience, scientific research, the arts, and procedural, practical information, often with economic implications (Hess & Ostrom, 2011). The commons involve direct cooperation and creative energy, and, more importantly, are maintained by the working class:

'The very term commons--at once a new name and a theoretical object of investigation--was meant to suggest something more than simply a collection, whether of digital objects or anything else; it was meant to signal the public interest, collective management, and legal status of the collection' (Kelty, 2008: Loc. 427-29).

Historically, concepts of the commons refer to the feudal era in Europe where enclosure of commonly held lands by the ruling elite marked the emergence of capitalism as an economic system (Fuchs, 2012; Hess & Ostrum, 2011). As Marx (1867) described in the first volume of Capital, peasants were thrust into the wage labor system after being deprived of lands from which they drew sustenance by hunting and farming:

'They inaugurated the new era by practicing on a colossal scale thefts of state lands, thefts that had been hitherto managed more modestly. These estates were given away, sold at a ridiculous figure, or even annexed to private estates by direct seizure. All this happened without the slightest observation of legal etiquette ... The bourgeois capitalists favoured the operation with the view, among others, to promoting free trade in land, to extending the domain of modern agriculture on the large farm-system, and to increasing their supply of the free agricultural proletarians ready to hand' (para.7).

Therefore the story of the first enclosure of the commons is one of privatization of essential lands and resources, depriving people of the means of self-support without having to resort to wage labor. A second enclosure of the commons is occurring now, targeting the geography of the Internet with the growth of advertising and surveillance-oriented analytics, restrictions of proprietary software, copyright law, and academic databases that limit access to information to those with the means to pay (Fuchs, 2012; Stallman, 2015).

Hess and Ostrom (2011) differentiate subtractive from non-subtractive resources. Subtractive resources are durable goods, such as food, which at any given time can be finite. During the pre-enclosure era, if someone over-hunted a species, it caused harm to the others and reduced their ability to survive, including the future of those who over-hunted. Enclosure by the ruling class introduced artificial scarcity and eliminated peasants' ability to monitor the commons. On the other hand, knowledge is a non-subtractive resource. It can never run out. It also accumulates and increases in value the more it is utilized, as with the quality of free software over time (Wayne, 2000). But people have to have access to the knowledge commons in order to benefit from it and for it to reflect their interests. Problems arise when the ruling class introduces scarcity as part of the second enclosure and shape the commons to their own ideology.

Hess and Ostrom (2011) found that those knowledge commons, such as Wikipedia and even public library systems that were able to maintain longevity also had defining principles that group members exercised together. These included rules developed by the group that also addressed local contexts with those most impacted by the rules being able to shape the rules. Boundaries were clearly defined and communicated to all members. Members were also expected to monitor their own behaviors. If any conflicts emerged, mechanisms were in place to address different levels of problems. No one person was in charge of all operations since authority was layered and nested. Successful communities had all of these factors while failed ones had none. No matter the central organizing principles of a community, 'combining disciplines and pooling knowledge was the only way to arrive at deeper understandings of effective commons management' (6). It was also recognized that it wasn't enough to enjoy the commons; it had to be protected so that everyone could benefit from its resources.

Unfortunately, as people's awareness of the knowledge commons increases, aspects of it become ripe for cooptation (Hess & Ostrom, 2011; Hill, 2005). This is the same as the recent bourgeois interest in Marx in the aftermath of the 2008 recession, where his ideas are misrepresented as being able to rescue capitalism, despite Marx's insistence that capitalism was incapable of being moderated by reform (Fuchs & Mosco, 2012). Much of the language used to discuss the knowledge commons is shot through with business rhetoric, not unlike what infiltrates education research with its endless infatuation with 'stakeholders,' 'collaboration,' and 'assessment.' For example, Shuhuai, Xingjun, Sheng, Haiqing, & Cao (2009) trace the evolution of the information commons, a term first used in the 1990s by university librarians in the U.S. to the learning commons (in order to promote a service model for librarians in an era of declining funding), and finally the knowledge commons. According to the authors, the knowledge commons has the following functions, in this case regarding libraries:

'The goal is to provide physical and virtual fields for communication and innovation, to furnish abundant information resources, repository and knowledge navigation, to offer convenient internet and powerful computer equipment, to provide interactive virtual community and collaboration software, to furnish network digging and analyzing tools, to offer information and knowledge service interdisciplinary and cross-department, to provide training for information literacy, information fluency and special skills, and to promote culture of trust, collaboration and innovation, and so on' (250).

The authors go on to stress the importance of resources provided for open collaboration, in support of innovation, which, of course, fits nicely within capitalist commodification and appropriation of knowledge--we are all supposed to work together in 'teams' to produce ideas which can then be 'adapted' by capitalists to turn around and sell for money, claiming they did all the hard work. A recent example of this is the now defunct Napster, a site where users could download music for no cost. Decried as stealing by the music industry, today's iTunes and pay-per music sites utilize the same concept as Napster.

This particular conception of the knowledge commons also fully embraces the proprietary hoarding of knowledge by requiring university issued passwords (only for faculty, staff, and actively enrolled students) in order to access tuition-supported databases, using computers that run on restrictive, proprietary software. Lest faculty delude themselves by thinking they are able to conduct research under the banner of open inquiry, much of this 'collaboration' means, depending on the project, that the university owns aspects of the work and can patent it for financial gain or forbid it from being accessible to others to modify or use as they see fit, even if that is what the faculty member wishes to do (Binkley, 2015).

In an attempt to provide a remedy for capitalist appropriation of the university, some academics have taken the 'piece of the pie' route by branding themselves and/or forming start-ups so that they, not the university or other entities, can be financially rewarded for their work, (unless they enter into partnerships with businesses). This is a variation of the solution proposed by Lanier (2014), who decries the idea that the only beneficiaries of the Internet are the large companies and not the content creators. For Lanier, in order to create value, Internet content should not be free of charge, but should be proprietary, so that everyone can be paid for their labor. So instead of publishing one's dissertation, one could create a consulting business around it, contract out one's services for workshops at corporations, etc. This option certainly violates the ethics of a knowledge commons by establishing a pay-per-use policy which is not really workable in virtual contexts like the Internet. For example, newspapers such as the New York Times soon found out the futility of such an approach when they required subscriptions to view online content.

Still another alternative is to insist that knowledge remain open for free, no-cost distribution, with no restrictions. This is the philosophy of the hybrid open source movement (also known as Free/Libre and Open Source Software, or FLOSS) and the Creative Commons, which is often confused with the free software movement outlined below. Hardie (2005) points out a key difference between the free software camp's and FLOSS' conception of the commons, where the open source community 'appears as a vast basin of things ready for consumption, facilitated by a commons constituted by law' (55). By contrast, a more Marxian notion of commons 'does not concern individuals' ability to consume, but focuses upon relations, life, and production in common' (55). For the open source movement, the goal is achieving popularity and mass distribution of ideas, not necessarily preserving access for others down the line. If a company or individual happens upon an open source software it likes, she/he/it can take that software, adapt it (or not), and sell it, placing restrictions on others from doing the same (Stallman, 2015). While not technically violating the knowledge commons ethos in all cases, it leaves the commons highly vulnerable for enclosure and pillaging, a critique that will be explored throughout this paper.

The best option for countering the worst effects of privatizing knowledge is contained within the free cultural work movement, the most well-known being the Free Software Foundation's free software movement. Within this movement, there are four essential freedoms which include 1) being able to run any program, for any purpose; 2) being able to figure out how a program works, which means access to its source code; 3) being able to share copies of the software to help others; and 4) being able to modify the original and share copies (Stallman, 2010). Any software coming out of this endeavor cannot restrict these four freedoms for others. The four essential freedoms can also be adapted for other cultural work such as the arts and writing. This approach combines freedom of access with copyleft protection prohibiting others coming in and benefitting off of collective labor for the purposes of privatization with further restrictions. At the same time, it remains permissible for authors to sell copies and modifications, provided there are no restrictions on others being able to do the same.

This paper will first outline some general terms related to the digital knowledge commons, along with misconceptions. Use of appropriate terminologies is important to establish because as soon as boundaries become blurred (as in the way the commons is presented in the media), shared knowledge is open to threat. A discussion of these threats to the commons will be presented next, revolving around copyrights, patents, licenses and their functions/purposes as well as the business-friendly FLOSS community. Alternatives to the current proprietary publishing and software industries will be addressed, along with specific cases of appropriation of the commons and what lessons we can derive from those. For the purpose of this paper, the knowledge commons will be limited to shared information in online or digital contexts even though certainly the commons have been expanded into face-to-face contexts like lending libraries, the Occupy activist movement, do-it-yourself (DIY) community workshops or pro-bono legal services.

Digital Commons Terminology

As Soderberg (2012) asserts, popular phrases surrounding the digital commons like information age can become problematic because they suggest that knowledge is a tangible 'thing' that can be magically separated from human labor, as if it is a commodity produced independently by a single author and stacked up over time. Instead, 'we need a language that makes visible to us that so-called information goods are continuously co-produced at multiple points of creation and reception' (72). More importantly, knowledge generation is a fundamentally communal process that resists commodification. Likewise, the common phrase intellectual property also assumes a knowledge ownership bias that is favorable to companies who hold patents, trademarks, and copyrights (Stallman, 2010; Wittel, 2012). This facilitates the enforcement of laws that do more to benefit capitalists than the creators of the knowledge that the laws claim to protect. Since copyright, patents, and trademarks are different concepts, often with conflicting elements, it is better to refer specifically to one or the other rather than grouping them together in a vague term.

Terminology surrounding the digital commons can be separated into three categories, each reflecting fundamental philosophical differences: 1) free software; 2) open source software; 3) and proprietary software. These concepts will be discussed throughout the paper.

Free Software

Considered one of the founders of the free software movement in the 1980s, Stallman (2010) defines free software as 'software that comes with permission for anyone to use, copy, and/or distribute, either verbatim or with modifications, either gratis or for a fee' (77). The term free is often confused with price when it is meant to reference instead the essential freedoms that users have when it comes to software and other forms of knowledge. As Wayner (2000) points out, 'people can spend their time sharing something with a real value to one and other but one that can't be computed in terms of money. The small gifts of information are free but they add up to something real for everyone' (Loc. 249-51). Therefore the free software movement is an openly political one with the aim of preserving access to knowledge (McChesney, 2012; Pfaffman, 2008; Stallman, 2010; Vanheuverswyn, 2007).

The main characteristic of free software is its modifiability through access to the source code, which are readable files that make up the construction of the program (Kelty, 2008; Pfaffman, 2008; Stallman, 2010). Pfaffman (2008) outlines the significance of having the source code in that it 'allows people not only to use the software, but also to learn from it or change it to better suit their needs' (26). Kelty (2008) views this modifiability as a way to transform software for 'use in new contexts, to different ends, or in order to participate directly in its improvement and to redistribute or recirculate those improvements within the same infrastructures while securing the same rights for everyone else' (Loc. 325-28). Additional benefits include collaboration, efficiency, shared knowledge, higher degrees of quality and the ability to more quickly identify problems that can be fixed (Vanheuverswyn, 2007).

Stallman (2010) notes that there are more similarities than differences between open source and free software regarding its modifiability and access to the source code. However, he emphasizes that:

'The free software movement is a social movement, not a business, and the success it aims for is not a market success. We are trying to serve the public by giving it freedom--not competing to draw business away from a rival. To equate this campaign for freedom to a business' efforts for mere success is to deny the importance of freedom and legitimize proprietary software' (98).

Lakhani and Wolf (2005) found that while those who participated in free and open source software projects were extrinsically motivated by career advancement and higher earnings, a significant portion of participants prioritized the creativity and challenges involved in writing code and found those motivations to be the most sustaining when it came to working through difficult projects. The characteristics of the free software movement members dispel the myth that money is the only thing that will motivate software developers (Vanheuverswyn, 2007).

The history of free software is also one of resistance in the form of hacking and hackers. Dyer-Witheford (1999) views hacking as a technological outcome of capitalism's weapons--in this case proprietary software restrictions--being used against itself. Despite its negative portrayal in the media, hacking involves 'playfully doing something difficult, whether useful or not' (Stallman, 2014: para. 5). Hacking is also viewed as an honorable identity by in-group members (Lakhani & Wolf, 2005). Soderberg (2012) traces the term hacker to computer programmers in the 1950s who used it to refer to unexpected and often humorous solutions to technological problems. Hacker culture developed in the universities like MIT during the 1960s and 1970s, when there were fewer restrictions on software and hardware access; as Stallman (2010) notes, there wasn't much security to break (McChesney, 2014). It wouldn't be until the 1980s that security breakers, known more properly as crackers, would be confused with hackers in an effort to build the public's allegiance with militaristic surveillance and the growing proprietary software industry.

Hacking's as a form of resistance has an even longer history. Billington (1980) describes how Marx had plans 'to infiltrate the correspondence networks and wire agencies centered in Brussels in order to place material in a wide spectrum of European journals' (309). Billington pinpoints the early distribution of Marxist ideas to the newspapers of the era, where many of the initial debates played out. A form of hacking was also carried out by farmers in the early 1900s. Ignored by Bell Telephone who was more interested in installing phone service in urban areas than isolated rural ones, farmers built their own telephone networks, which were later integrated into the larger system (McChesney, 2014). These and more current examples of hacking demonstrate that

'by making computer technology accessible to non-professionals, it undermines the social division of labor as the regulating principle for technological development. In plain language; corporate and government institutions have lost their monopoly over research and development. Concrete political results follow when decisions over technology are spread to the crowd ... this emancipatory promise contradicts the association regularly made between cyber-politics and high-tech libertarianism' (Soderberg, 2012: 4).

Open Source Software

In reaction to the growing influence of proprietary software companies and the desire to partner with business, some of the initial proponents of free software split off to form the open source movement, or FLOSS in the 1990s (Stallman, 2015; Vanheuverswyn, 2007). As Kelty (2008) describes, open source software was a product of the dotcom boom, accompanied by efforts at cost-cutting when it came to software development. While the free software movement was focused on the political aspects of software development and preserving users' freedom, FLOSS was more of a libertarian development philosophy with the goal of distribution by any means possible, to the most people possible. A common open source saying is, 'information wants to be free' which subverts what Soderberg (2012) sees as the foundation of the knowledge commons: 'If the information commons prove resilient to commodification, it is not because "information wants to be free," but because the laborers producing information want to be free' (73). For the open source movement, information is treated as free-floating, a result of the collaborative process that no one owns (unless the price is right).

As with free software, FLOSS software requires user access by the distribution of the source code, along with eight additional criteria (The Open Source Initiative, n.d.). One of these is that software developers cannot prevent use for proprietary purposes. In other words, if a company takes the source code and modifies it, it can use the open source community as a backdoor way of turning around and licensing the software for proprietary purposes, transforming it from open source to non-free (Soderberg, 2012; Stallman, 2010; Vanheuverswyn, 2007). Since the primary goals are product improvement and mass distribution, businesses are not viewed as adversarial, but as potential partners. Likewise, businesses see open source as a convenient way to quickly develop quality software by using the power of the group to locate problems that would normally be expensive to diagnose and repair (Wayner, 2000).

Proprietary Software

Another term for non-free software is proprietary software, developed for the purpose of making a profit, specifically by not releasing the source code:

'The name of the game in these walled gardens is to exploit what economists now sometimes call an "enhanced surplus extraction effect" that is, the increased ability to fleece those walled within. Once an empire has you inside its confines, it is much easier for them to push the whole line of products on you. In effect, the giants are vying to be digital company stores in a national or global company town' (McChesney, 2014: 140, Loc. 2984-87).

Proprietary software is sold with a license/user agreement attached, although forms of it can be offered gratis as a way of enticing people to purchase a more detailed, expensive version. Notions of 'free' as in 'no cost' can lead to some confusion because proprietary software is not the same as commercial software--free software can be purchased, for example, but the source code is still made available. Stallman (2010) also notes how free software developers can often be lured into thinking they can design a free software add-on that is dependent on a proprietary package; however, it is still non-free software. The Free Software Foundation members will not install proprietary software on their computers unless they are attempting to write a free version of it.

The proprietary software industry has been quite successful at co-opting the language of the free software movement, aided and abetted by the open source movement. For example, freeware is not free software because the source code is not available for modification. It is often produced by proprietary companies or in collaboration with open source projects that allow for redistribution and it is often gratis. Shareware allows for redistribution and it is initially gratis, but after a period of time a license fee will be required to continue using the software (Ducke, 2012; Stallman, 2010). Both of these terms are misleading and play on the positive notions of 'free' and 'share' that the public might hold. Additionally, Stallman notes how proprietary software strengthens its position by people using specific software names to stand in for a type of general software. For example, MP3 is a specific brand of proprietary digital audio player. There are other options for audio players that are free software, but MP3 becomes the official term for this type of software, thus locking a proprietary brand into the public's mind. The same is true for PowerPoint, which is a Microsoft product. To be more accurate, one should use a more generic term unless one is referring to a specific software name.

The Cloud. A product of marketing imagination, the cloud refers to large, corporate-owned network servers where people store their digitized information (Hall & Stahl, 2012; Moglen, 2010; Stallman, 2010). With the growth of mobile technology use and even smaller, portable devices, people become accustomed to storing their information on servers rather than relying on traditional means of backing up files. One has to access the cloud in order to obtain one's information (McChesney, 2014). As part of an overall philosophy of Software as Service (Saas), these large, inaccessible servers remove users from control of their data even more so than traditional proprietary software (Stallman, 2010). Like cloud, the associated term platform is a product of marketing, and suggests the effect of being further cut off from the source of information. Platforms are a shortcut to being able to run web applications that usually take more infrastructure to create. Moglen (2010) sees this further fragmentation as an outcome of Saas: 'the Net, once it became a hierarchically architected zone with servers in the center and increasingly dis-empowered clients at the edge, becomes the zone of platforms and platform making becomes the order of the day' (para. 27).

For Moglen (2010), the term cloud creates an interesting metaphorical paradox. Servers used to be associated with metal, something permanent. With the cloud label, servers have gained freedom of movement, ephemeral qualities, and the ability to merge and separate in any given location while those who use cloud services are increasingly tracked and monitored, especially for the purposes of data extraction for more targeted advertising (McChesney, 2014). As Moglen (2010) characterizes it,

'So we got an architecture which was very subject to misuse. Indeed, it was in a way begging to be misused and now we are getting the misuse that we set up. Because we have thinned the clients out further and further and further. In fact, we made them mobile. We put them in our pockets and we started strolling around with them' (para. 25).

Trusted Computing. As proprietary software has appropriated the FLOSS movement and intensified its hold over users, agreements between large corporations have been established as part of the Trusted Computing Group, consisting of Microsoft, Intel, IBM, and HP (Soderberg, 2012). Trusted computing means that these companies possess the root passwords for personal computers, a feature which has been in place since 2002 and built into 2007's Windows Vista operating system. As Stallman (2010) explains, 'What Microsoft keeps is not exactly a password in the traditional sense; no person ever types it on a terminal. Rather, it is a signature and encryption key that corresponds to a second key stored in your computer. This enables Microsoft, and potentially any websites that cooperate with Microsoft, the ultimate control over what the user can do on his own computer' (108). Trusted computing also has critical implications for privacy as the FBI can easily obtain these root passwords.

Digital Rights Management Technology. As part of the Orwellian-named Digital Rights Movement, Digital Rights Management (DRM) technology is meant to prevent users from copying and distributing software or other digital information. Even if someone has legally purchased a DVD, CD, or digital download, locks can be placed within the files to prevent one from backing up this material (Soderberg, 2012; Stallman, 2010). As with the use of the words 'free' and 'share,' 'rights' is designed to elicit sympathy from the public toward the corporations who hold the patents and copyrights, while further restrictions are placed on the distribution of information by users. As Vanheuverswyn (2007) explains, people are also lulled by DRM into thinking that if they purchase software, they also own the software (as opposed to those cheaters who are trying to steal):

'Not only do you not own that copy of Microsoft Word, that video game, or even that MP3 player, but like most people using commercial software (be it pirated or paid for in a shop), you also don't own any other way of accessing your information. To this you can reply: "But I will always have my computer because it is mine, and nobody can stop me listening to my music collection!" Maybe so, but not necessarily' (para. 3).

Threats to the Digital Commons

As McChesney (2014) asserts, 'the Internet has been commercialized, copyrighted, patented, privatized, data-inspected, and monopolized; scarcity has been created' (218, Loc. 4655-56). This section will critically examine two primary categories of threat to the digital commons, brought on by artificial scarcity. The first tactic of scarcity is in the form of laws surrounding copyright and licensing, particularly software patents. These practices promote the enclosure of the commons. A second tactic has to do with the inability of the open source movement to fully protect the commons due to their willingness to partner with corporations, which leaves the commons vulnerable to proprietary hoarding. A few examples of proprietary appropriation will be presented as illustrations of this phenomenon. Within the examination of these threats will be potential counter-positions which could be utilized toward creating solutions and a stronger digital commons.

Copyright and Licensing

Historical Overview. Originally, copyright was a concept meant to encourage the production of creative works in the wake of the invention of the printing press. Authors were able to feel more secure in knowing who was distributing their works and the growth of intellectual ideas flourished Authors could control who had access to publishing their works for a period of 21 years after the first printing and could earn a living from their work (Fightback Admin, 2014, para. 13; Soderberg, 2012; Stallman, 2010). The period of 21 years was established in England as part of The Statute of Anne (1710), which prioritized authors over publishers (Butler, 2015). At that time, copyright only restricted the initial publication of a work, not what readers could do with it; thus the 21 year time frame enabled a wider distribution of works within an author's lifetime. Still another motivation for the creation of copyright laws had to do with rulers seeking to establish author identity as a way to monitor subversive ideas; a concern raised after the printing press made radical notions more easily distributed (Soderberg, 2012). So a mixture of motivations was behind the initial concept of copyright.

However, with the advent of capitalism and the emergence of the printing industry to meet the demands of a bourgeoisie book market, copyright was soon transformed into a means of supporting publishers' profits over authors' rights, though the rights lingo remained despite the U.S. Constitution only allowing for, not requiring, copyright (Soderberg, 2012; Stallman, 2010). As Stallman (2010) notes, after publishers were able to maximize production during the industrial revolution, the next logical step was to insist that authors cede them the maximum amount of copyright powers. So in effect, authors transfer their 'rights' to publishers, 'it is usually publishers, not the authors, who exercise these powers and get most of the benefits, though authors may get a small portion' (112).The extension of copyright protections from 21 to 70+ years has no appreciable benefit to anyone except the publishers and perhaps a few top-selling authors (Butler, 2015). It has the effect of protecting the monopoly rights of corporations over cultural production; nothing copyrighted since the 1920s has been released into the public domain (McChesney, 2014).

Today, the printing press has been replaced by an even bigger, more uncontrollable threat to profit, that of digital distribution. During the Middle ages, a 200 page book could take anywhere from months to years to hand-create and was out of reach of most due to prohibitive cost. After the printing press, copies could be made in a day and purchased by most. With computers, there is zero cost to reproduce and acquire information, once the needed infrastructure is in place (Fightback Admin, 2014, para. 12; McChesney, 2014; Soderberg, 2012). However, instead of adapting by maintaining and strengthening the digital commons, publishers have dug in as a way of asserting their ownership over the means of production:

'The copyright is meant to give the creator exclusive rights to exploit their work, which in turn will provide an income for the creator and motivate her to produce new work. However the actual copyright system does not operate according to this ideal. Most artistic and intellectual work relies on a process of production, reproduction, and distribution that involves many people and expensive technology ... ownership of copyright increasingly rests with the capitalists who have the machinery and capital to manufacture and distribute' (Wittel, 2012: 327).

By asserting this form of publisher-based copyright, capitalists introduce artificial scarcity to a system that is more suited for free and open distribution (McChesney, 2014). At the same time, copyright 'has turned into a means to expropriate [an author's] property to the benefit of publishers' (Fightback Admin, 2014, para.15), with authors and artists being even more locked into the system of wage labor than before (Peekhaus, 2012; Soderberg, 2012).

Current Restrictions. The Copyright Act of 1976 was the first to respond to technologies such as mimeograph machines, photocopiers, cassette tapes and the newly invented ability to record videotapes. While the combination of establishing fair use policies and ending need to register for copyright opened up access, the scope of what could be protected was expanded (Kelty, 2008). Enclosure of the digital commons continued apace after the passage of the Digital Millennium Copyright Act (1998) which criminalized those who made unauthorized copies or made information available on how to do so, including digital books (Hess & Ostrom, 2011; Stallman, 2010). One of the most insidious aspects of the DMCA was that it allowed corporations the ability to write their own copyright laws. Notions of monitoring the distribution of information have also been used to justify online surveillance (Patriot Act) and the global imposition of copyright rules (free trade agreements) (Hess & Ostrom, 2011; McChesney, 2014; Stallman, 2010). In 2011, the Stop Online Piracy Act would have enabled authorities to remove websites that were thought to violate copyright laws. Fortunately, resistance from the public put a halt to the legislation (the fact that the major search engines were also opposed didn't hurt), but lawmakers remain determined to eventually prohibit any form of outlaw distribution of information (McChesney, 2014).

These laws restrict information through copyright, patents, and licensing: 'Depending on the company and its media holdings, rights demanded can include translations, digitizing, adaptations and performances, reprints, relicensing, promotions, and storage of articles in electronic databases' (Cohen, 2012: 150). Even the rights to images of celebrities can be signed over to a third party (Soderberg, 2012). While copyright owns the expression of an idea, a patent is the idea itself (Soderberg, 2012; Stallman, 2011). As Stallman (2010) explains, 'A patent is an explicit, government-issued monopoly on using a certain idea' (143). Trademark law is often lumped together with patents and copyright under the vague concept of 'intellectual property rights,' but trademarks are simply a form of branding used in the promotion of a product for advertising. With patents, a single line of code can be registered, creating restrictive barriers for free software developers.

Wrapped into patents are prohibitions on what you are not allowed to do with the work. Information about registered patents can also be withheld from the public for a period of time, making it difficult for independent software developers to know if they are violating the law until the software is released and they are threatened with lawsuits; some companies do this deliberately to force cross-licensing agreements (Stallman, 2010). With proprietary software, patents on the programming code operate through closed licenses, which is a form of a contract known as an end user license agreement (i.e. the click 'I agree' before downloading the program):

'When people say "I am going to buy a copy of Photoshop," they actually mean "I am going to buy a license to run a copy of Photoshop, and hope that I meet all the criteria stipulated in the license contract"' (Vanheuverswyn, 2007: para. 7).

Closed licenses are highly restrictive--if you buy a copy of Microsoft Word, for example, you are unable to share copies with friends or redistribute it in any way. If a feature of Word doesn't work as well for you and you are handy with programming, you are not able to alter it to make it function better (Stallman, 2010). To make matters worse, when you buy a license (which is often expensive) to run proprietary software, you do not actually own the software (Vanheuverswyn, 2007) . People are often lulled into thinking they own proprietary software, as part of the mythology of the free market and private property.

Another form of restriction has to do with vendor lock-ins, where the expense and time of switching to a different brand of software makes customers dependent on a particular brand (Ducke, 2012; Stallman, 2010; Vanheuverswyn, 2007). Free market ideology promises 'consumer choice' where people are told if they become unhappy with a company's software, they could just switch to another brand. However, this is often more difficult to do and means more money spent. IBM's decision to unbundle its hardware and software where people had to purchase items separately further broke down isolated elements of source code that could be more easily patented, enabling further extraction of money from consumers (Kelty, 2008) . Even if you buy a laptop today with a Microsoft operating system included, you still have to purchase Office software in order to install Word and PowerPoint. Or, if you purchase a copy of SPSS, a statistical software program, you have to renew the license annually to have access to the program.

Within the academic field, the patents and copyright surrounding software and other digital materials create further restrictions. Proprietary software for research purposes is expensive for many graduate student and part-time faculty budgets; and institutional licensing agreements are even more prohibitive in a climate of colleges and universities facing cuts (Ducke, 2012; Hall & Stahl, 2012; Peekhaus, 2012). Ducke (2012) also expresses concerns that proprietary software creates a black box research effect. Researchers become dependent upon the software's features for the processing of data rather than understanding data processing itself. Proprietary software also makes the reproducibility of results more difficult. This is similar to Stallman's (2010) assertion that harm can come from restrictions in that only a few people are able to access a program's features, making adaptability impossible, with development taking place within a closed circle. For example, Microsoft Word is vulnerable to viruses because of the closed process of software development; fewer users can catch problems early on (Wayner, 2000).

Probably the biggest restriction within academia that emerges as a result of copyright and patents has to do with the appropriation of free labor produced by academics, which is then funneled through expensive and restrictive contracts with university libraries (Hall & Stahl, 2012; Peekhaus, 2012). In many cases, libraries have no control over whether journals will be pulled from a bundled license or they are saddled with journals that aren't useful for faculty and students. Peekhaus (2012) outlines how capitalism separates the labor of the academic from not only the individual professor, but from the public domain:

'By appropriating the free labor that sustains the production, peer-review, and editing of scholarly communication and then locking the resulting content behind intellectual property rights, licensing agreements, and technological protection mechanisms, capital has developed a very lucrative model in service of its own accumulation imperatives ... This increasing enclosure of scholarly communication and academic publishing within the capitalist market nexus that is informed by property rights, alienability, and capital accumulation represents a contemporary instance of primitive accumulation and alienated productive activity' (587).

The social knowledge produced for free by researchers is often also publically funded, making the enclosure of this research an even greater outrage. A form of capitalist gatekeeping results in the form of journal publishers who contract with proprietary databases. For example, Thomson Reuters uses an algorithm to calculate the impact of a journal based on citations. However, 'accountable only to its shareholders rather than the actual authors and readers of scholarly research, Thomson Reuters refuses to divulge the criteria it employs to determine what counts as a "citable" article' (p. 592). This form of academic enclosure represents 'a relatively new source of capital accumulation' (586). Beall (2015) also notes how the use of impact factors like citation counts is vulnerable to corruption.

Assumptions. There are four primary assumptions about the capitalist copyright and patent system that enable it to persist--especially when it comes to the digital commons--despite its obvious harms. The first is the belief that companies have a natural right to the patents that they own and that any form of distributing information without purchasing the original copy is stealing, even in the case of free software (Pfaffman, 2008; Stallman, 2010). Stemming from this, the assumption is that if you agree to the conditions of a license, that company has a right to enforce the law if they feel it is being violated. Within this assumption, much energy is spent trying to track down those who illegally download software or music rather than focusing on the exploitative practices of the companies themselves:

'The idea that the proprietary software social system--a system that says you are not allowed to share or change software--is anti-social, that it is unethical, that it is simply wrong, may come as a surprise ... readers who find the idea surprising may have taken the proprietary software social system as a given, or judged it on the terms suggested by proprietary software businesses' (Stallman, 2010: 8).

This makes it difficult for people to comprehend how alternative free software licenses operate: 'Understanding a license that forbids restrictions on redistribution is difficult to understand when most software is distributed with a license forbidding redistribution' (Pfaffman, 2008: 26).

A second assumption is that without the publishing industry, we would have no reliable software, and written material would be full of grammatical errors and low-quality research (Stallman, 2010). Either we have proprietary software and publishing or none at all, with no other possibilities; therefore the publishing system as it exists is the best we have (note the philosophical similarities to proponents of TINA, there is no alternative to capitalism). Additionally, all of the quality control services require money, so we should be happy to support publishers and their increasing fees and licenses. This assumption is represented by Beall (2015) who has been a longtime critic of the open access movement. While he is rightly concerned about the predatory pay-to-publish journal industry and its associated high-priced services as well as the corruptibility of using impact algorithms, he conflates what is essentially a for-profit publication scheme with peer reviewed publications that adhere to a free software philosophy. He also misrepresents copyleft licensing as a whole, giving authors the impression that they sign away their "intellectual property" rights to open source journals. The reality is that it is the traditional publishing industry that restricts the distribution of academic research, not the copyleft licenses. In terms of the required expenses, Stallman (2010) proposed that if everyone had the freedom to mirror, or make copies of publications, libraries would set up sites for this purpose, which would provide for faster access, more secure archiving, and reduce bandwidth burdens.

A third assumption is that without publishers the notion of the original author-as-idea-creator would disappear and that no one could be attributed to any particular idea. This viewpoint, which has its history in the bourgeois romantic vision of the artist (Soderberg, 2012) is promulgated by tech writers such as Lanier (2014). In an interview with Timberg (2013), Lanier expressed his concern with the loss of the ability to identify authors with the increasing accessibility and reproducibility of knowledge on the Internet:

'I was in a cafe this morning where I heard some stuff I was interested in, and nobody could figure out. It was Spotify or one of these ... so they knew what stream they were getting, but they didn't know what music it was. Then it changed to other music, and they didn't know what that was. And I tried to use one of the services that determine what music you're listening to, but it was a noisy place and that didn't work. So what's supposed to be an open information system serves to obscure the source of the musician. It serves as a closed information system. It actually loses the information' (para. 62).

Even though his critique has elements of truth, he takes the capitalist system as a given. Rather than addressing the exploitative practices of media companies (who are the ones hoarding information and reaping the financial benefits off of artist labor), he mourns the loss of attribution to a specific author and faults open distribution systems rather than just the for-profit ones.

The lone author assumption is fraught with problems. Soderberg (2012) outlines how this assumption (often cited by liberals) strengthens the capitalist appropriation of creative labor where 'commodification of labor occurs when a subjectivity of individual authorship is fixated over the labor process ... the individual puts his efforts into producing commodities for the market' (8). The fact that the word 'content' is regularly used in defense of publisher copyright is quite telling regarding creative works as commodities (Stallman, 2010). This indicates an inability to see how the role of 'author' is a key aspect of capitalist appropriation; they are not rebels working outside of the system (Soderberg, 2012).

Another flawed assumption is that creative output is a lone endeavor rather than the result of accumulated, socially produced activity (Stallman, 2010). Publishers insist that artists need their protection to guard original ideas from those waiting to pillage, when in actuality the rationale provided is based on propped up assumptions, such as the original idea eventually being financially successful when most businesses fail within five years. As Stallman notes, 'we are supposed to sacrifice freedom and access to knowledge for the vague dream that patents will stimulate the market somehow' (151). Additionally, patents are no guarantee of protection--often an independent software designer will become absorbed into cross-licensing agreements when they find themselves unable to fight large companies who possess numerous patents to their single holding. So, patents 'protect' the software designer from those who copy a program to share with friends, but not from the large companies who pressure them to obtain patents.

A fourth assumption is that those opposed to copyright law are just another group of freeloaders who want 'something for nothing' and don't want to pay authors for their labor. This is probably the most-used argument from the left and it exists in various forms, often tied to the third assumption about author originality. It is important to first view this assumption for what it is--propaganda on the part of the publishing industry as a way to justify its practices (Peekhaus, 2012). At the same time, there are legitimate concerns about the devaluation of labor that has happened in the wake of digitized information, as Hall and Stahl (2012) outline:

'This process of transforming the University into an active site of struggle over the value produced by cognitive capitalism is accelerated through the commodification of emergent technologies and their subsequent fetishization. This process amplifies how capital maneuvers for power inside the academy, and promotes an instrumentalism of academic practice that is related through immaterial labor and class struggles to critiques of academic activism and cybernetic control of knowledge production' (184-185).

However, instead of targeting the capitalist publishing industry for critique, academics 'equate their own rights against employers with expanded intellectual property rights ... thereby confirming the logic of exchange value with every victory they have scored' (Soderberg, 2012: 154).

The irony of this approach, of course, is that under the current publishing regime, few academics are paid for their labor when it comes to writing, research, editing, and volunteering to review other people's work (Butler, 2015; Peekhaus, 2012). The core problem is that this labor is being appropriated by the capitalist publishing industry, not that it is unpaid labor. Nor are those who defend access to the digital commons the problem. Currently, the industry shows no signs of budging in terms of working out a payment scheme for academic authors beyond the meager book royalties currently in place. Under these conditions, academics are in a roundabout way defending the very industry that is perpetuating the conditions they are trying to change. At the same time, they are contributing to the enclosure of the commons by standing behind the publishers in restricting the distribution of already appropriated labor.

Alternatives. We do have alternatives to the current system of copyright and patents. The first option consists of licenses which includes FLOSS type licenses (Creative Commons). Despite some limitations associated with the open source movement itself (outlined below), Creative Commons licenses offer a variety of versions for different purposes, some of which are compatible with the GNU ('GNU, Not Linux,' a term coined by Stallman) types described below. For example, one of several Creative Commons licenses, called the Creative Commons Attribution CC BY license allows for maximum distribution and use of materials, provided that the author is credited for the original work (Creative Commons Licenses, n.d.). The Attribution Share-Alike is closest in intent to the GNU copyleft, where anyone can modify and re-distribute the work, including commercially, so long as the author is credited and so long as no restrictions are placed on future users other than preventing proprietary hoarding. The Creative Commons Attribution licenses are also available in commercial and non-commercial options and their website has an easy-to-use guide for finding the correct license for your work (

A second licensing option is copyleft, as advanced by the Free Software Foundation. In 1983, GNU created the General Purpose License (GPL), which has undergone several revisions since then (Stallman, 2010). The significance of copyleft licenses is that they include a provision that prevents the practice of proprietary hoarding, something missing in many of the Creative Commons licenses from the open source movement. As Stallman (2010) explains, 'Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom' (127). So proprietary companies can't harvest the labor of the digital commons, patent it, and prevent anyone else from accessing it in the future. Even though the GNU copyleft is mostly designed for software and manuals, academics doing any form of publishing could use the Free Software Foundation's Free Documentation License or the Creative Commons' Attribution No-Derivatives 4.0 International license (see for more information). It's a simple matter of including a copy of the license in your work.

The power of copyleft is its cooptation and subsequent inversion of the traditional purpose behind copyright where the GNU GPL licenses inscribe the guarantee of freedom within the license--everyone has permission to access, modify, and distribute the work but they cannot add restrictions (Stallman, 2010; Vanheuverswyn, 2007):

'Under the GPL, the creator inverts the individualizing force of copyright by denouncing his individual rights and has these returned back to him as a collective right. He enjoys the collective right not to be excluded from a shared body of work. Private property, on the other hand, is nothing but the right of a single party to exclude all others' (Soderberg, 2012: 20).

The concerns about author individuality are also alleviated in that copyleft requires acknowledgement of the original source no matter the modification (Hess & Ostrum, 2011). Likewise, copyleft also allows for commercial distribution of works, such as organizations selling copies of books for fundraising or other purposes. So a work could potentially be available in a variety of formats, some gratis, some donation-based, and others for sale (Stallman, 2010).

A third category of alternatives to the current system is the vast amount of free, ethical software available to academics and institutions. Linux is a free software operating system used by millions without the hassle of proprietary licenses. Because Linux users have access to the source code, problems are easily identified. Several versions of Linux are available for those used to graphic interfaces such as one sees with Microsoft or Apple (Pfaffman, 2008; Wayner, 2000). A classroom version of Linux, Edubuntu and the K12 Linux Terminal Server Project, enable teachers to completely outfit their classrooms as a computer lab with minimal maintenance, even using older machines (Pfaffman, 2008). Pfaffman also notes that provides similar applications such as Microsoft Word, PowerPoint, and Excel and has the ability to read Microsoft documents; while GIMP and NVU are examples of free software photo and web editors replacing the often expensive Photoshop and Dreamweaver proprietary software:

'These advantages ... have important implications for teachers and teacher educators who often become the unwitting sales agents of software companies. For example, when teachers require students to turn in assignments using a proprietary file format like Microsoft Word's, this implicitly suggests that in order to be a successful student one must buy, know, use, a particular software program. Similarly, when teachers design courses that teach particular computer skills, basing these courses on particular proprietary products makes those applications an obligatory point of passage' (Pfaffman, 2008: 27).

Finally, built within these alternatives is the notion of practicality as opposed to sheer idealism. The success of free software and the increase of online, gratis, peer-reviewed journals have shown that this system of production has resulted in a more accessible, often higher quality product that benefits many (McChesney, 2014; Peekhaus, 2012; Soderberg, 2012). This is in contrast to a closed system of development inherent in the proprietary software and publishing industries, despite their attempts to use open source hybrid approaches:

'The folks who are working on free software projects have advantages that money can't buy. These programmers don't need lawyers to create licenses, negotiate contracts, or argue over terms. Their software is free, and lawyers lose interest pretty quickly when there's no money around. The free software guys don't need to scrutinize advertising copy. Anyone can download the software and just try it. The programmers also don't need to sit in the corner when their computer crashes and complain about the idiot who wrote the software. Anyone can read the source code and fix the glitches' (Wayner, 2000: Loc. 527-31).

The communal nature of free software production means that much time is saved because the collective knowledge of programmers and users is tapped into for modifications and the identification of errors (Ducke, 2012; Kelty, 2008; Soderberg, 2012). Even better, the fruits of this labor are protected for the digital commons rather than being under threat of seizure by proprietary interests.

Inadequacies of Open Source

The open source movement or FLOSS was an offshoot of the earlier free software movement. With the rise of technology use in homes and schools resulting in a growth in sales, some of those who had participated in free software development began to envision themselves participating in creating proprietary software and establishing partnerships with businesses in order to reap some of the financial benefits that companies were getting (Kelty, 2008; Soderberg, 2012; Stallman, 2010; Vanheuverswyn, 2007). Stallman's ethical stance toward free software and copyleft were seen as stifling progress while alienating potential partners so a more appealing set of definitions had to be established:

'A crucial element in this strategy was to choose a label that sounded less threatening to status quo than the term "free software." Free software, as the Free Software Foundation never fails to point out, concerns first and foremost the question of freedom. Freeing up technology is a means to deepen democracy. Such notions are just not helpful when corporations are to be courted. The preferred label decided upon was Open Source' (Soderberg, 2012: 37).

The FLOSS acronym was later added to try to fold in the free software group who were still committed to collaborative projects. However, open source founders such as the X Consortium were adamant that copyleft users were dogmatic and anti-business in that they did not allow proprietary software developers to privatize collective labor (Kelty, 2008; Stallman, 2010; Vanheuverswyn, 2007).

For open source proponents, popularity and mass distribution with an emphasis on profitability are equated with democracy, a libertarian notion that dominates most tech writing today. Open source also 'emphasizes the centrality of novel forms of coordination' over copyleft licensing or releasing source code (Kelty, 2008: Loc. 1962). Ironically, FLOSS members don't consider themselves a political movement even though they oppose the Free Software Foundation and other copyleft groups for political reasons. Instead, their stated reasons for moving away from the free software philosophy are presented in the form of 'cash[ing] in on the rising tide of the Internet economy by turning the creation of free software into something that made more sense to investors, venture capitalists, and the stock-buying public' (Kelty, 2008: Loc. 1972). Soderberg (2012) analyzes the apolitical stance of the open source movement for its ability to cobble together a coalition of alternative software developers with capitalists:

'From a liberal perspective, FOSS development is understood as simply another business model that better approximates the free market ... legislators, judges, and the general public are more receptive to the arguments of FOSS advocates if the challenge to intellectual property rights is framed within a liberal discourse ... there is a reassurance to hackers in the belief that information technology and free market forces inevitably will defeat the enemy, artificial monopolies and intellectual property' (30-31).

In the absence of a strong defense of free software, apolitical beliefs and an emphasis on the postmodern playfulness of hacking create a vacuum where 'the void is colonized by right-wing, commonsensical ideology' (18).

These apolitical aspects of open source are also historically situated as part of the rise of neoliberalism and the ascendance of free market digital 'revolution' dot com boom (McChesney, 2014). FLOSS adopts a vague, ahistorical kind of freedom, tied to copyright and patent law rather than being connected to a historical materialist concept of human freedom (Hardie, 2005; Peekhaus, 2012). In his critique of the Creative Commons, Hill (2005) points out how a lack of historical context and insistence on moderating the free software message only reinforces right wing ideology:

'CC's goal of escaping a world of "all rights reserved" is laudable, but they fail to describe what it will be replaced by except to say it will be better. While something better is surely desirable, it might also be too little. Balance, compromise, and moderation are certainly admirable and worthwhile goals; but undefined, unlimited, and unchecked, conservatism risks reducing CC's concept of balance toward little more than "slightly better than the status quo'" (Hill, 2005: 51).

Even though the Creative Commons state that they are building on the foundation of the free software movement, they reject the concept of defining limits or taking steps to protect freedom by using copyleft licenses. Those actions are viewed as imposing unnecessary restrictions that get in the way of the ultimate goal of mass distribution.

One of the key weaknesses of FLOSS projects is that they often serve as an important veneer to cover over what are essentially proprietary purposes. As Stallman (2010) points out, non-free software companies 'wanted free software developers to donate their work for such use. If they had asked for this directly, people would have laughed. But the X Consortium, fronting for them, could present this request as an unselfish one' (Stallman, 2010: 223). McChesney (2014) notes that de-politicized hacker culture can contain aspects of invincibility; while some members of the open source movement might find partnering with business distasteful, they also tend 'to believe that no matter what the corporate guys cook up, they would be able to circumvent it' (105: Loc. 2235-36). Indeed, these partnerships have resulted in lucrative hybrid projects, such as the MySQL, Mozilla's Firefox, Google's servers using FOSS Linux, Android phones using nonfree versions of Linux, Apple's operating system being derived from UNIX, among others (Kelty, 2008; McChesney, 2014; Pfaffman, 2008; Stallman, 2015; Wayner, 2000). IBM also regularly uses open source development strategies while working to patent code and prevent free software development (Soderberg, 2012; Stallman, 2010).

What these partnerships often result in is a further identification of tech workers with capitalism, despite their apolitical, anarchist-libertarian assertions to the contrary.

For Wayner (2007), the characteristics of FLOSS and its intrinsically motivating qualities (Lakhani & Wolf, 2005) often compel workers to be productive, even without being reminded to by the boss. They are often willing to troubleshoot in advance and work collaboratively. These features of open source make for a nice fit with capitalism, and in fact is highly beneficial.

'In the software sector, self-organized labor is outdoing capital in its own game of technological development ... FOSS developers are deeply embedded in the capitalist society, that individual capitalists make good use of the volunteer labor of the hacker community, and that FOSS applications have become serious competitors thanks to the backing of the computer industry' (Soderberg, 2012: 115).

The result of this identification with capitalism through FLOSS is that workers are less inclined to seek alternative ways of controlling their labor by challenging management (Dyer-Witheford, 1999). FLOSS 'represses radical potentialities in favor of reformist hopes' (113).

At the same time, the proprietary software industry has come to depend on the open source arm of development for its profit model. Companies make deliberate decisions to hire programmers for FLOSS projects (Lakhanki & Wolf, 2005). They also now see the FLOSS model as necessary for maintaining their level of profit and seek to further coopt and contain it to shape their needs:

'there are now many organizations around the world which have earned literally billions of dollars by taking advantage of anarchist production. They have brought their own state of economic dependency on anarchist production to such a high level, that they cannot actually continue operating their businesses without the anarchists' products. They, therefore, now begin to serve as founders, mentors, and benefactors, for anarchism. They employ our programmers and pay them wages. They assist our programmers in gaining additional technical skill and applying that skill more broadly ... They have to do that. They need anarchism to be legally solid. They do not want it to fail. They want the anarchist legal institutions that we have created to become stronger over time, because now their businesses depend upon the success of anarchist production' (Moglen, 2007: 7).

By embracing open source, capitalism has engaged in a form of creating the conditions for its undoing. At this point, we have to ask the question: 'Is free software a tool reclaimed from capital, or is it a cog integrated into a larger software capitalist machine?' (Soderberg, 2012: 133).

Illustrative Cases

There are several examples where the open source philosophy is not only an inadequate line of defense for maintaining the digital commons; it also facilitates enclosure of the commons. This section will highlight a few of these cases of threat to the digital commons, each with a different context that has relevance for those interested in preserving the commons. These include lessons learned from the development of UNIX, attempts by Lawrence and Wishart, a radical publisher, to remove the first ten volumes of Marx and Engels' writings from the website, data harvesting plans by, and a detailed analysis of the legalities surrounding attempts to privatize JMRI software.

Cooptation of UNIX. Soderberg (2012) characterizes AT&T's attempt to fully convert UNIX to proprietary software 'as one of the most notorious enclosures saluting the dawn of the "information age'" (19). UNIX was one of the earlier operating systems using the open source philosophy where AT&T and Bell Labs allowed the source code, which they owned, to be available to developers, provided it would not be distributed beyond the university setting (Kelty, 2008; Soderberg, 2012; Wayner, 2000). A good part of their decision to allow the open source approach was the monopoly lawsuit facing AT&T, where the company was forbidden to sell software, but they could continue to develop it for free and reduced cost while they rode the lawsuit out. As Kelty (2008) explains,

'The proliferation of UNIX was also a hybrid commercial-academic undertaking: it was neither a "public domain" object shared solely among academics, nor was it a conventional commercial product. Proliferation occurred through novel forms of academic sharing as well as through licensing schemes constrained by the peculiar status of AT&T, a regulated monopoly forbidden to enter the computer and software industry before 1984' (Loc. 2118-21).

After the phone company was ordered to split up in 1984, AT&T wanted to leverage their open source 'partnership' as a solution to recoup their profits from an already expensive and time-consuming project. Thus, the nondisclosure agreements began, transforming open source code into proprietary code while still retaining the benefits of group development (Wayner, 2000).

Stallman (2010) participated in developing the free software operating system GNU/LINUX in reaction to the UNIX incident, with GNU standing for "GNU, Not UNIX" as a means of setting it apart from the open source hybrid approach. The background of GNU/LINUX also illustrates the problems of open source. One of Stallman's former project partners made the decision to sell a version of a program EMACS, written for UNIX in 1983, to a proprietary company. Because Stallman was using part of his former partner's now-privatized code in UNIX, this became a violation of patent and Stallman was threatened with a lawsuit should he persist in using the code. Eventually, Stallman reworked the code so that it became a different version and could continue to be used by everyone (Kelty, 2008). This experience would also lead Stallman and others to create the GNU copyleft licenses which would prevent proprietary hoarding of free software code.

Marx & Engels for Sale. In 2014, users of the Marxists Internet Archives, a gratis site with nearly a million visitors per month (Fightback Admin, 2014: para. 3), noticed something was missing. Lawrence and Wishart (L&W), a radical press that had been instrumental in publishing translations of The Collected Works of Marx and Engels, demanded that the digital commons site take down all of those works for which they held a copyright (Fightback Admin, 2014; McLemee, 2014). The publisher was asserting its copyright so that they could enter into an exclusive subscription contract with universities. As Butler (2015) notes:

'it is not communists who will be affected, but casual readers, researchers outside the university, students, those curious about Marx and so on. That is, they wish to make it difficult to access in order to monetize a series of legal claims to a corpus of work foundational to a social movement dedicated to the abolition of private property' (para. 4).

Marxists Internet Archives posted the takedown notice on their site. After the overwhelmingly negative reaction to this decision, L&W appeared to be surprised and offended at the public's response, and made the following statement, as summarized by Fightback Admin (2014):

'Income from our copyright on this scholarly work contributes to our continuing publication programme,' stated L&W. 'Infringement of this copyright has the effect of depriving a small radical publisher of the funds it needs to remain in existence. ' They accused protesters of being part of 'a consumer culture which expects cultural content to be delivered free to consumers, leaving cultural workers such as publishers, editors and writers unpaid' (para. 6).

The publisher essentially ignored the moral claim of the digital commons on Marxist foundational works to support a weak argument that people needed to pay to support radical publishers and uphold the capitalist copyright system because of author integrity and the 'unpaid labor' defense. As Butler notes, 'there's no obligation on any of us to support radical publishers simply by virtue of their existence, still less does "radical" content make a publisher non-capitalist. One does not cease to be a capitalist enterprise simply by being a nice, abstemious, or inefficient capitalist' (para. 10). Butler critiques both the copyright defenders' phony meme of the necessity of "paying authors" (most academic authors are not paid anyhow and at last check Marx and Engels have been dead a long time and can't be reimbursed)--used as a justification for limiting access to knowledge--as well as radical presses which seek to limit distribution by partnering with limited-access venues, such as library databases. Created in 2008, is an open source Facebook-like site where professors can create profiles and share their writing to a global audience on the Internet. It currently has 4.3 million users who upload 150,000 articles per month, from a mixture of peer-reviewed and independent sources (Shankland, 2013: para. 8). The site enables academics to network with each other and upload papers which are searchable world-wide without users having to pay high fees to obtain copies if they are outside the reach of a proprietary database, for example. However, the site owners have more in mind than promoting the sharing of work. Shankland (2013) notes how the company seeks to change the face of the peer review system by turning it into an analytics-based, for-profit feedback scheme:

'When we've built what we hope will become this new digital infrastructure around scientific research, there are several ways to monetize [it] that stem from mining the vast array of data we will have access to, such as providing information to pharmaceutical companies about trending areas or breakthroughs in science that haven't yet hit their radar,' he said. 'Another example is that we'll be able to help universities and R&D companies source the top scientists in specific areas, and hence monetize via recruiting avenues' (para. 7).

Site creators want to essentially replace peer review with a form of online branding, where academics would promote themselves in an entrepreneurial manner. The more 'hits' or 'likes' an article gets, the more a work would be flagged as a potentially profitable endeavor because it is using 'real time metrics' to establish author 'credibility' (Cutler, 2012: para. 6). The CEO of even stressed that having a web presence was as important as being published in a peer reviewed journal. was eventually forced to remove copyrighted content from their site, which represented a form of stalemate between two capitalist appropriators of academic work-for-profit data-mining companies versus publishers. Petruska (2014) outlines her critique of both approaches:

'When academics sign contracts with publishers, the terms of the publication arrangement may issue an embargo period or outright prohibition of the author posting the final, published version of the essay on a personal blog or a site like Some scholars may argue that the exchange of knowledge is the point of academic publishing and these contract stipulations inhibit that goal. Meanwhile, many of the largest academic publishers are for-profit companies that benefit from the unpaid labor of academic writers and volunteer peer reviewers. Moreover, these companies also enjoy virtual subsidies provided by universities that pay researchers' salaries and that fund the libraries that purchase expensive journal subscriptions. All of these layers of seeming exploitation may seem to justify the efforts of academics to create alternative distribution methods to share their own research' (para. 2).

JMRI & Copyleft. Probably the most dramatic rationale for copyleft protections comes from an unlikely source. The Java Model Railroad Interface (JMRI) is a bundle of open-source software created in the late 1990s that is used by model railroaders to more efficiently run their layouts without having to create an operating system from scratch. The software can be used with a smartphone or laptop, bringing an enormous degree of flexibility to a more traditional hobby. Along with the software, the JMRI web site has active forums and discussion portals so that hobbyists from all over the world can talk shop and exchange ideas and updates ( The web site also has an acknowledgments page that lists site updates and recent improvements to the software, which has become a global community project. Prior to JMRI, the model railroad hobby was limited to a club structure and used more stationary solutions to operate trains; now, the ability to use portable electronic devices has increased interaction, taking the hobby online to reach a larger user demographic.

The limitations of open source soon became apparent in October 2004 when JMRI site users noticed that the domain name had been registered earlier that year by Matt Katzer of KAM Industries, a company that sells railroad software. DecoderPro is the name of one of the JMRI open-source products. Katzer was not a member of the JMRI community, nor had he ever contributed to the development of the open-source software in any way, shape, or form. It was later revealed by community members that Katzer was a habitual cybersquatter, someone who profits off of the knowledge commons by seizing on the communally creative efforts of others in order to privatize these efforts for personal gain (Barrett, 2008). For example, Barrett outlines how previously Katzer had applied for patents for several other inventions that were not his own. When asked by JMRI about the domain name registration, Katzer replied that he wanted to 'take the open source code and turn it into a licensed product so it could be distributed. ... If I decide that to released [sic] a licensed version of an open source development effort, what better place to have it then the name of the development effort?' (JMRI, n.d.: para. 4).

When JMRI wrote a letter to Katzer requesting the return of the domain name, he didn't reply. A JMRI user, Jerry Britton, made an offer to Katzer to trade another domain name. Eventually, the case was settled, with Britton taking the domain name with a host of restrictions on how it could be used, including the threat of a $20,000 fine if he attempted to transfer the name to JMRI or even speak about the settlement to anyone. Emboldened, Katzer then proceeded to demand royalties ranging from $19.00 to $29.00 per downloaded copy of JMRI software. JMRI received bills in excess of $200,000 per month.

In 2006 JMRI filed a declaratory judgment complaint against Katzer, citing unfair competition, libel, and patent fraud. Katzer and his attorneys responded by filing motions to dismiss the accusations of libel. Eventually, the case went to court, culminating in a 90-minute hearing (Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)). Because of prior restrictions, the court decided it could not hear evidence that contradicted Katzer's statements about his previous patent activity, and therefore the plaintiff was ordered to pay Katzer's legal fees and the antilibel and antitrust charges couldn't stand. After this hearing, Katzer proceeded to take JMRI copyrighted code, remove original authorship attributions, and sell it as exclusively his own. JMRI filed an amended complaint, citing Katzer's copyright violations, which was followed by another motion to dismiss from Katzer. His attorney argued that copyright did not protect open-source software which carried no restrictions for use. After some back and forth in the courts, JMRI filed a preliminary injunction and a rebuttal to the claim that open-source software wasn't protected by existing copyright law.

A hearing was held in 2007 to prevent further copyright violations by Katzer. In the meantime, the World Intellectual Property Organization reviewed the earlier case regarding the domain name and returned a decision that Katzer had acted in bad faith, and that the domain name should be transferred to JMRI. Although this decision was a victory for JMRI, the back-and-forth in the courts continued, taking its toll on the group in terms of financial and emotional costs (which is archived on the web site, with links to the legal documents). For example, initially, the court rejected the claims of harm to JMRI, stating that not enough conclusive evidence had been provided. By then, JMRI was supported by several other knowledge commons advocates, including the Creative Commons Corp, the Linux Foundation, the Open Source Initiative, and the Wikimedia Foundation. They were able to provide expertise on the intricate maze of copyright law and how it applied to software, and they filed research in support of JMRI's case.

In 2008 another hearing was held on the copyright appeal, with positive results for JMRI. The judge ruled that open-source software was considered copyright protected, just as privately licensed products are. When open-source conditions are violated, the license disappears and one becomes a copyright infringer. After this decision, another series of court filings ensued, with Katzer continuing to fight JMRI's charges up to the point of countersuing the plaintiff for $6 million. This was followed by more legal back-and-forth, culminating in a settlement agreement in 2010. A permanent injunction was leveled against Katzer, forbidding him to misuse JMRI software, including by profiting from it. Katzer also had to release JMRI from any liability for anything tied to JMRI, whose reputation was damaged by the confusion caused by members being charged by Katzer for downloads. Katzer is no longer able to gain royalties from JMRI, nor can he claim copyright infringement. In addition, Katzer had to pay $100,000 to JMRI over 18 months. Currently, JMRI is Copylefted under the GNU GPL, version 2.0, which means that proprietary hoarding is prohibited. This offers JMRI maximum protection and was a hard-fought lesson to learn about the vulnerability of open source software.

Conclusion: Lessons Learned

The primary lesson to be gained from these examples is that open access by itself is not sufficient to protect the digital commons (Hardie, 2005; Hill, 2005). In fact, FLOSS is now a strategy regularly used by capitalists as part of managing labor costs, which filters its way into public institutions like universities:

'content delivery through the online open-access model contributes to commercial publishers' profits by lowering marginal costs of production to almost zero and reducing many of the traditional costs associated with physically publishing a paper journal (materials, printing, inventory management, and distribution costs). Moreover, with funding agencies and universities beginning to apportion more funds to cover publication fees, there exists the potential for publishers to retain their control and their rent-seeking behavior as they shift their revenue models from a subscription base to author fees' (Peekhaus, 2012: 591).

Soderberg (2012) notes how simply appropriating the means of production, as open source workers have been able to do, is not enough because 'the productive tools are framed within a social machine of unfreedom' (135). Capitalism has managed to refashion the role of government into a giant publically-funded product development arm--the government makes the initial investments into large projects, then business watches to see what might pan out, and finally swoops in to privatize and make money from the collective work of others, all while fighting to abolish corporate taxation and minimize regulations (McChesney, 2014). The open source community has not been able to fight this approach and many times openly encourage it.

A second subsequent lesson is that academics need to consider alternative means of publication and distribution of their work. This could include using the appropriate GNU and copyleft licenses on all written work. As Peekhaus (2012) recommends, 'Open-access proponents, and particularly those seeking to abolish capital's parasitic appropriation of academic publishing, also need to engage in more radical, awareness-raising activities that shake academics out of their complacency to the status quo of journal publishing' (593). This means participating in boycotts of publishers who seek to enclose the digital commons. Since academics are not typically paid for their written work, why not use our work to attempt to reappropriate from the capitalist copyright system as part of defending the commons and contributing to public knowledge? Just because the capitalist copyright system is rejected doesn't mean we have to do away with peer review or editing skills these can be easily accomplished by those in our community as part of the responsibility to the commons.

A third lesson is one of solidarity and of making more careful choices. Not as many people are aware of the options provided by free software and copyleft (as with this author prior to writing this article) due to a combination of incessant advertising, vendor lock-in, lack of computer knowledge, and assumptions that the existing proprietary software and publishing industries are the only available (and convenient) choices. Part of solidarity means reframing one's ethical position as not being exclusionary, but protective of the digital commons. In response to criticism from the FLOSS community about his line in the sand approach to what counts as free software, Stallman (2010) replies:

'We are not excluding them from our community; they are choosing not to enter. Their decision to make software proprietary is a decision to stay out of our community. Being in our community means joining in cooperation with us; we cannot "bring them into our community" if they don't want to join' (130).

For Stallman, the choice not to participate in using proprietary software is an ethical stance to defend the principles of freedom and sharing. As he puts it, 'I refuse to break solidarity with other users in this way. I cannot in good conscience sign a nondisclosure agreement or a software license agreement' (28).

A fourth lesson points to the role of the digital commons in the restructuring of society itself. We know that the current use of open source and FLOSS is not about a Marxian commons, but to advance the project of privatization (Hardie, 2005). While utilization of the free software and copyleft options are a short-term maintenance solution, more is required:

'What is needed is a transfer of all available computer technology to a form of social ownership, linked with a democratic world socialist government that would finally put all available resources and technology to the public's use. That, in turn, requires a socialist transformation of society that would abolish the profit system and establish a worldwide democratically controlled economic system where production is based on the needs of mankind' (Vanheuverswyn, 2005: para. 30).

Even open source FLOSS software and publishing is now irrelevant in light of capitalist appropriation of its principles and rapid enclosure of the digital commons. As Moglen (2010) remarks, 'It's the freedom that matters. The rest is just source code' (para. 53).


fwilson@aurora. edu

Aurora University


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Date:Nov 1, 2016
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