New Critiques of the Peer Production License
Ralf Schlatterbeck from Vienna has posted another article on the much – contested PPL question. See below – after a short introduction.
Most of our readers might remember the article „Socialist Licenses?“ by Stefan Meretz which was published recently here in Keimform.
On 20th of March, Michel Bauwens replied in the P2P weblog. His key argument is the following: „the present fully-sharing open licenses which allow unrestricted commercial exploitation create a ‘communism of capital’, i.e. a sphere of open knowledge, code and design, which is subsumed to the present dominant political economy. But what we need is an autonomous sphere of peer production, in which commoners and peer producers can create their own livelyhood, while staying in the sphere of the commons. In other words, we need a ‘capital for the commons’. The best way to achieve that is to converge the sphere of immaterial commons contributions, with a sphere of cooperative accumulation through which the surplus value can stay within the sphere of commons/cooperative production.“
This has been again contested from several sides. Jakob Rigy from Budapest recently argued in a paper that in this way commons would totally depend on capital, they simply would collect information rent without truly transitional perspective. He further argues that the autonomous sphere of peer production could only be built if we were to decide that we adopt a cooperational lifestyle, where we act as comnmunities of mutually supporting people, whilst seeking to establish bigger and bigger cycles of mutually supporting communities. This can only mean that communities seek to reach a certain level of material self – reliance, while cooperating with each other where they need to because of the complexity of division of labor, local differencies, differences in development. Rigi had laid out this perspective already in the „Journal of Peer Production“ (Issue 1, July 2012) by writing: „The lack of a clear collectivist vision combined with the dominant capitalist environment makes P2P production vulnerable to invasion by capitalism. Many projects that had been started as P2P production were diverted into capitalist enterprises. Under this condition the propagation of a clear communist vision among the participants of P2P production will be indispensable for the advancement of the new mode of production.“ But this communist vision is simply the sum of practical requirements: „Actually, as Barbrook (2007) argues, all contributors to P2P production are involved in a communist material practice, regardless of their attitudes to communism. The task of communists is to describe and theorize this practice and critique capitalism from the vantage of this practice.“
This point is now underlined in his triple C article „The Coming Revolution of Peer Production and Revolutionary Cooperatives. A Response to Michel Bauwens, Vasilis Kostakis and Stefan Meretz“. I recomend reading this article as a collection of several points, one that describes the status quo of value and money with their social implications, one that gives credit to the dynamics of the GPL and one that explains what „communist vision“ could actually mean. The key point here is that „The building of … revolutionary cooperatives requires a massive exodus from the city to the country.“
In this respect, Jakob Rigi totally resonates with my approach to consider the pattern of „Global Villages“ crucial and central for the Commons and Keimform concept. „Perhaps the first waves of such exodus will, though not exclusively consists of the urban “precariat”. This is already happening in some parts of the world: the most prominent example of which is the landless movement in Brazil that mainly consists of the urban precariat. Cooperatives will offer them better living conditions: more spacious housing, better and healthier food, better access to culture, health care and education. This, however, does not exclude the participation of the urban dwellers in cooperatives.“
One of the main requirements for communities to thrive and support each other is their ability to produce; from this perspective, space and material resources are indispensible, and the best conditions emerge in circumstances that are semi-rural and semi-urban.
Models for such cooperatives and their global cooperation have to be found. The most important task at the current time is to revolutionize technology and communication.
So, in answering Michael Bauwens request, the „autonomous sphere of peer production“ will not emerge by a license, but by a contra – factual practise which supports the emergence of cooperative relations based in material flows of proximity and reciprocity between people and their communities.
On the other hand, the envisioned Peer Production License meant simply to attract money to strengthen the cooperative sector might have some built – in flaws totally overlooked by the wishful thinking of its authors. I asked my friend Ralf Schlatterbeck who is also involved in the Global Villages movement and who recently presented his first piece of hardware useful for rural or periurban subsistence ( a self closing and opening door for a chicken shelter) to think through the consequences of the PPL purely from a practical point of view. He published his findings on his weblog, and I quote the text here in full, totally subscribing to his points which complement the critiques of Meretz and Rigi:
Peer Production License
May 28th, 2014 by Ralf Schlatterbeck
Recently discussions about new licensing models for open cooperative production have come up (again). This discussion resurrects the “Peer Production License” proposed in 2010 by John Magyar and Dmytri Kleiner  which is also available on the p2pfoundation website  although it’s not clear if the latter is a modified version. The license is proposed by Michel Bauwens and Vasili Kostakis accompanied by a theoretical discussion  why such a license would enhance the current state of the art in licensing. The proposal has already sparked criticism in form of critical replies which I will cite in the following where appropriate.
The theoretical argument (mostly base on marxist theories I don’t have the patience to dig into) boils down to differentiating “good” from “bad” users of the licensed product. A “good” user is a “workerowned business” or “workerowned collective”  while a “bad” user seems to be a corporation. Note that the theoretical discussion seems to allow corporate users who contribute “as IBM does with Linux. However, those who do not contribute should pay a license fee”  (p.358). I’ve not found a clause in the license that defines this contribution exception. Instead it makes clear that “you may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation”. Finally it is made clear “for the avoidance of doubt” that “the Licensor reserves the exclusive right to collect such royalties for any exercise by You of the rights granted under this License” .
With the cited clauses above the “new” license is very similar to a Creative Commons license with a non-commercial clause as others have already noted  (p.363). Although the missing clauses in the license for a contribution exception for non-workerowned collectives or businesses is probably only an oversight — Rigi  (p.396) also understands the license this way — this is not the major shortcoming.
For me the main point is: who is going to be the institution to distinguish “good” from “bad” users of the product, those who have to pay and those who don’t? The license mentions a “collecting society” for this purpose. Whatever this institution is going to be, it might be a “benevolent dictator”  at the start but will soon detoriate into a real dictatorship. Why? As the software-focused “benevolent dictator for life” Wikipedia article  notes, the dictator has an incentive to stay benevolent due to the possibility of forking a project, this was first documented in ESRs “Homesteading the Noosphere” . Now since our dictator is the “Licensor [who] reserves the exclusive right to collect such royalties”  there are other, monetary, incentives for forking a project which has to be prevented by other means covered in the license. Collection of royalties is incompatible with the right to fork a project. We have an “owner” who decides about “good” vs. “bad” and uses a license to stay in power. A recipe for desaster or — as a friend has put it in a recent discussion “design for corruption” .
Other problems are the management of contributions. As Meretz has already pointed out, “only people can behave in a reciprocal way”  (p.363). Contributors are people. They may belong to one instution that is deemed “good” by the dictator at one point and may later change to an institution that is deemed “bad” by the dictator. So a person may be excluded from using the product just because they belong to a “bad” institution. Take myself as an example: I’m running an open source business for ten years “primarily intended for or directed toward commercial advantage or private monetary compensation” . I guess I wouldn’t qualify for free use of a “peer production license” licensed product. One of the reasons for success of open source / free software like Linux was that employees could use it for solving their day-to-day problems. This use often resulted in contributions, but only after using it for some time.
Which leads to the next problem: The license tries to force “good” behaviour. But you must first prove to be “good” by contributing before you’re eligible for using the product. As noted by Rigi the “GPL stipulated reciprocity does not fit into any of these forms [usually known to economists (my interpretation)]”  (p.398) because a contributor always gets more (e.g. a working software package) than his own contribution. This exactly is one if not the main reason people are motivated to contribute. Openness creates more ethical behaviour than a license that tries to force ethics. Force or control will destroy that motivation as exemplified in the Linus vs. Tanenbaum discussion where Tanenbaum stated:
If Linus wants to keep control of the official version, and a group of eager beavers want to go off in a different direction, the same problem arises. I don’t think the copyright issue is really the problem. The problem is co-ordinating things. Projects like GNU, MINIX, or LINUX only hold together if one person is in charge. During the 1970s, when structured programming was introduced, Harlan Mills pointed out that the programming team should be organized like a surgical team–one surgeon and his or her assistants, not like a hog butchering team–give everybody an axe and let them chop away.
Anyone who says you can have a lot of widely dispersed people hack away on a complicated piece of code and avoid total anarchy has never managed a software project.  (Post 1992-02-05 23:23:26 GMT)
To which Linus replied:
This is the second time I’ve seen this “accusation” from ast, who feels pretty good about commenting on a kernel he probably haven’t even seen. Or at least he hasn’t asked me, or even read alt.os.linux about this. Just so that nobody takes his guess for the full thruth, here’s my standing on “keeping control”, in 2 words (three?):
 (Post 1992-02-06 10:33:31 GMT)
and then goes on to explain how kernel maintenance works (at the time).
What becomes clear from this discussion is that the main focus of chosing a license is to attract contributors — preventing others from appropriating a version or influencing derived works is only secondary. Many successful open source projects use licenses that are more permissive than the GNU General Public License GPL Version 2 , and the new Version 3 of the GPL  which is more restrictive sees less use. The programming language Python is a prominent example of a successful project using a more permissive license . Armin Ronacher documents in a blog post  that there is a trend away from the GPL to less restricitive licenses. This is also confirmed statistically by other sources .
One reason for this trend is the growing mess of incompatible licenses. One of the ideas of open source / free software is that it should be possible to reuse existing components in order not to reinvent the wheel. This is increasingly difficult due to incompatible licenses, Ronacher in his essay touches the tip of the iceberg . License incompatibility has already been used to release software under an open source license and still not allowing Linux developers to incorporate the released software into Linux .
Given the reuse argument, adding another incompatible license to the mix (the proposed Peer Production License is incompatible with the GPL and probably other licenses) is simply insane. The new license isn’t even an open source license  much less fitting the free software definition  due to the commercial restrictions, both definitions require that the software is free for any purpose.
When leaving the field of software and other artefacts protected by copyright we’re entering the field of hardware licensing. Hardware unlike software is not protected by copyright (with the exception of some artefacts like printed circuit boards, where the printed circuit is directly protected by copyright). So it is possible for private or research purposes to reverse-engineer a mechanical part and print it on a 3D printer. If the part is not protected by a patent, it is even legal to publish the reverse-engineered design documents for others to replicate the design. This was shown in a study for UK law by Bradshaw et. al.  but probably transcends to EU law. Note that the design documents are protected by copyright but the manufactured artefact is not. This has implications on the protection of open source hardware because this finding can be turned around. A company may well produce an open source design without contributing anything back, even a modified or improved design which is not given back to the community would probably be possible.
Hardware could be protected with patents, but this is not a road the open source community wants to travel. The current state in hardware licensing seeks to protect users of the design from contributors who later want to enforce patents against the design by incorporating clauses where contributors license patents they hold for the project. This was pioneered by the TAPR open hardware license  and is also reflected in the CERN open hardware license .
To sum up: Apart from the inconsistencies in the theoretical paper  and the actual license  I pointed out that such a license is a recipe for corruption when money is involved due to the restrictions of forking a project. In addition the license would hamper reuse of existing components because it adds to the “license compatibility clusterfuck” . In addition it won’t protect what it set out to protect: Hardware artefacts — except for some exceptions — are not covered by copyright and therefore not by a license. We can only protect the design but the production of artefacts from that design is not subject to copyright law.
Last not least: Thanks to Franz Nahrada for inviting me to the debate.
|||Dymtri Kleiner, The Telekommunist Manifesto. Network Notebooks 03, Institute of Network Cultures, Amsterdam, 2010.|
|||(1, 2, 3, 4, 5, 6) Dymtri Kleiner, Peer Production License, 2010. Copy at p2pfoundation.org (Not sure if this is the original license by Kleiner or a modification)|
|||(1, 2, 3) Michel Bauwens and Vasilis Kostakis. From the communism of capital to capital for the commons: Towards an open co-operativism. tripleC communication capitalism & critique, Journal for a Global Sustainable Information Society, 12(1):356-361, 2014.|
|||(1, 2) Stefan Meretz. Socialist licenses? A rejoinder to Michel Bauwens and Vasilis Kostakis. tripleC communication capitalism & critique, Journal for a Global Sustainable Information Society, 12(1):362-365, 2014.|
|||(1, 2) Jakob Rigi. The coming revolution of peer production and revolutionary cooperatives. A response to Michel Bauwens, Vasilis Kostakis and Stefan Meretz. tripleC communication capitalism & critique, Journal for a Global Sustainable Information Society, 12(1):390-404, 2014.|
|||Wikipedia, Benevolent dictatorship, accessed 2014-05-27.|
|||Wikipedia, Benevolent dictator for life, accessed 2014-05-27.|
|||Eric S. Raymond, Homesteading the Noosphere 1998-2000.|
|||Michael Franz Reinisch, private communication.|
|||(1, 2) Andy Tanenbaum, Linus Benedict Torvalds. LINUX is obsolete, discussion on USENIX news, reprinted under the title The Tanenbaum-Torvalds Debate in Open Sources: Voices from the Open Source Revolution, 1999. The discussion was continued under the subject “Unhappy campers”.|
|||GNU General Public License version 2. Software license, Free Software Foundation, 1991|
|||GNU General Public License version 3. Software license, Free Software Foundation, 2007|
|||Python Software Foundation. History and License 2001-2014|
|||(1, 2, 3, 4) Armin Ronacher, Licensing in a Post Copyright World, Blog entry, Jul 2013|
|||Matthew Aslett, On the continuing decline of the GPL. Blog entry, December 2011|
|||Bruce Perens, The Open Source Definition, Online document, Open Source Initiative, 1997|
|||Free Software Foundation, The free software definition. Essay, 2001-2010|
|||Simon Bradshaw, Adrian Bowyer, and Patrick Haufe, The intellectual property implications of low-cost 3D printing. SCRIPTed — A Journal of Law, Technology & Society 7(1):5-31, April 2010.|
|||John Ackermann, TAPR open hardware license version 1.0, Tucson Amateur Packet Radio, May 2007|
|||Javier Serrano, CERN open hardware license v1.1, Open Hardware Repository, September 2011|