Thomas Lommée

Over the last 20 years, we have been witnessing the early developments of a networked economy that is operated by its interconnected participants. Decentralized information streams and sources have altered people’s attention scopes, ambitions and goals and stimulated a more critical and pro-active attitude. Rather than swallowing manicured advertising made up by professional PR departments, consumers are now informing, inspiring and instructing each other with home-grown content – using Twitter feeds, blogs and YouTube movies to communicate their skills, knowledge and ideas.

But the global mouth-to-mouth mechanism of the World Wide Web  TREND: NETWORK SOCIETY not only initiated a dialogue among consumers, it also started a conversation between consumers and producers. This emerging dialogue is generating exciting new business models and rearranging current artistic practices.

On the one hand, it enables consumers to participate in the design process at various levels. Blogs facilitate product reviews and ratings, while easy access to online instructions stimulate consumers to personalize, adapt, repair  REPAIRING or hack  HACKING products. On the other hand, producers can now obtain a huge amount of feedback on their products by observing all these millions of small movements online and subsequently respond to them in their next product releases. Some producers are even actively involving the end user in the creative process by asking them to design new applications (e.g. Apple’s app store) or to propose new uses for their products (e.g. the Roomba vacuum cleaner ¹).

Out of this creative dialogue, the need for a common design language, a kind of shared design vocabulary with its own specific rules, characteristics and outcomes, is slowly  STANDARDS emerging. This vocabulary is manifesting itself through common agreements within the dimensioning, assembly and material cycles of the object. The concept of introducing a set of open standards is nothing new. Whenever a need for sharing has become apparent, open standards have always emerged as a means to generate more flexible and resilient models of exchange. The internet, for example, is entirely based on HTML coding, a common, free-of-charge text and image formatting language that allows everybody to create and share web pages; Wikipedia is nothing more than a common standard template that can be filled in, duplicated, shared and edited over and over again.

Despite the obvious advantages that these common standards and design protocols bring, there is considerable scepticism among designers to adopt and embrace them – probably because, until recently, a seemingly infinite amount of resources indicated little need for more flexible and open systems, and the hierarchical, top-down monologue of mass communication offered few opportunities for exchange.

In addition, these open models also raise questions of accountability, profitability and formal expression. How do we credit the contributors? How do we generate money? Last but not least, how do we balance openness and protection, freedom and restriction? Since every standard by definition imposes a restriction, it limits our choices and obstructs our freedom to design and shape, and it disrupts our independent position as designers.

Nevertheless, the more we continue to share and exchange, the more the need for common platforms will surface within all aspects of our culture. This doesn’t mean that one system will replace the other. Sometimes the commons will do a better job; other times the classical systems will prevail. Both open and closed systems will continue to exist, but it is the evolution of both in relation to the emergence of a networked society as well as the growing range of hybrids (closed systems with open components) that need to be closely observed and tried out.

Designing within certain common standards will require a different mindset from all stakeholders of the design process. In order to think ‘within the box’, in order to accept and embrace the new opportunities that emerge out of common restrictions, we need to acknowledge that we are part of a bigger whole, rather than being the whole itself. It requires us to give up the myth to create ‘something new’, something that ‘hasn’t been done before’ and to replace it by a willingness to dissolve into bigger projects that just make common sense. This new mindset will severely damage the romantic ideal of the ‘designer-creator’  DESIGNERS and shift it towards the ‘designer-collaborator’.

And, let’s face it, that’s quite a different perspective to work from. No designer of our generation wants to be a pixel; we all want to be the full-colour image.

Mushon Zer-Aviv

I have been teaching open source design since 2008, in an attempt to figure out whether it can even exist. This article is an opportunity for me to reflect on and share my latest failures and successes in teaching what has yet to be learned.

I was first exposed to the open source world as a user of some free software; it was only later that I was introduced to the idealistic arguments about Freedoms, ACTIVISM as a more abstract principle. This combination of collaborative work and individual autonomy intrigued me. Coders were developing appealing political structures that were fostering creativity, collaboratively. I envied that degree of creative freedom; as a designer, I live in fear of ‘design by committee’.

Don’t designers know how great free collaboration can be? Are they too afraid of trying? Do they just need a helping hand? Or is the problem that what works for code just doesn’t really translate into the design process?

Inspired by these initiatives, I started my own open source project, co-founding ShiftSpace.org; I took part as a designer, collaborating with Dan Phiffer, a coder. It was my enthusiasm about open development that inspired me, but I was surprised to find that this excitement was not shared by my fellow designers. Don’t designers know how great free collaboration OPEN EVERYTHING can be? Are they too afraid of trying? Do they just need a helping hand? Or is the problem that what works for code just doesn’t really translate into the design process?

I set out to answer these questions, but trawling through online resources did not yield enough satisfactory writing on the subject. Many discussions confused sharing with collaboration,  CO-CREATION or were trying to advocate the use of open graphics software for purely ideological reasons. These arguments did not convince me; I was fairly sure that the ideological stance of coders could not be the only element that makes ‘Free Software’ such a desirable practice. Similarly, there is no intrinsic sociable instinct that leads coders to one another. The networked collaborative model of Free Software for coding is pragmatically the best way to go; any other way just makes much less sense. In this context, ideological reasons are secondary to simple pragmatism.

An Open Design Lab, with My Students as Lab Rats

It might be that we just haven’t found the right way to transcend the design process; it’s not as if we’ve tried all that hard yet. Art and design schools still nurture the image of the genius  DESIGNERS as an individual artist. Originality is rewarded as a higher standard than com-munication, and copying is considered a sin. I figured the classroom would be the first place to start, so I proposed a class for the Parsons School for Design entitled Open Source Design. I assumed that our exploration of design based on Free Software methods should probably start with interface design, since interface is an integral part of most of the software we use. My hope was that I would be able to convince my students to contribute their design skills to some projects – have them get hands-on experience working on real projects while actually making some actual (and much-needed) contributions to Free Software.

To drive home the point about collaboration (and to scare off any students who might not be ready for the bumpy ride), I decided to kick off the first class with some bold statements:

“In this class, we’re going to explore the possibilities of Open Source Design while learning HTML, CSS & WordPress theming. However, I should warn you that I don’t have much experience in HTML & CSS, and I will practically be learning WordPress for the first time along with you guys.”

You can imagine the looks on their faces. Luckily for me, only some of them left as soon as the class was over. My approach to this class was different than what I had done in previous classes I had taught. Rather than teach the students to use the technology, we learned how to figure things out on our own. Rather than memorizing every HTML element and what it might be good for, we learned to use Firefox and the Firebug extension to inspect the source code of every site. Open source made sense immediately when the students could read the HTML code   KNOWLEDGE of any page like an open book. Unlike in other classes, the students were encouraged to copy, to analyse, to understand and to implement code and design patterns they found on the web.  HACKING

To look at grid-based design, we used the Blueprint BLUEPRINTS CSS framework; for WordPress, we used the Sandbox and Thematic framework themes. In both cases, the students based their work on previous design decisions coded into these frameworks and explored ways of modifying the code or design to fit their needs. We were using design foundations that were strong, but at the same time easy to modify. It made sense to the students; they understood why the concept of openness might actually be relevant for them.

Teaching vs Learning

Like many other design educators, teaching is one of the ways that I can stay up to date. I am required to constantly keep myself informed, constantly learning and make sure I actually understand new subjects enough to teach them. That is also a benefit of being involved in open source initiatives. The professional exchange between coders facilitates a sustainable peer-to-peer learning environment – and one that extends beyond the structures of institutional education. To extrapolate, if I learn by teaching students and geeks learn by teaching each other, maybe my students can learn that way too.

The first assignment in my class was ‘The Tutorial’. Students were required to create a (non-digital) tutorial on something they already knew how to do, preferably a topic that others might not be familiar with. They exchanged tutorials in class; over the following week, all the students had to follow the guidelines provided by their peers and report to the class on their experiences. The students wrote tutorials on such topics as ‘How to curve a football’, ‘A recipe for banana bread’, ‘DIY 3D glasses’, ‘Finding an Apartment in NY (Without Paying a Broker)’ and ‘How to Sell Multiple Pairs of Shoes’. A tutorial is an involved interactive design task, even when the tutorial is not digital. It also provided a framework for the semester that was constructed around knowledge sharing, documentation and peer learning.

Art and design schools still nurture the image of the genius. Originality is rewarded as a higher standard than communication, and copying is considered a sin.

Tutorial hunting has become a substantial part of the semester, as tutorials become a major source of pooled knowledge. We used a class mailing list where students could submit technical questions and ask for creative feedback. I encouraged them to post their code and questions on the blog and refer their peers to the relevant blog post from the mailing list. However, in many cases, a code snippet was not enough to get the full picture, reproduce the problem and help solve it; we needed to share the full code repository. I was concerned that getting the students on a version control system would be pushing them just a bit beyond the geekdom level that design students could handle in one semester, but it became unavoidable. I set them up on a centralized Subversion code repository, so every student would get every code update downloaded directly to their computers. They shared all the code by definition and could modify each other’s work when needed. SHARING

This worked well, but it had an unacceptable side effect: at the end of each semester, the class code repositories created in that semester would be left abandoned. Symbolically, each class became an abandoned open source project. Obviously, that was not the message I wanted to leave the students with. I recently gave up on the Subversion system, which used centralized version control, and got my students on Git and the Github.com ‘social coding’ site. On Github, the students publish their code in public and other users (not just the other students in the class, but also other users) can easily fork, merge and comment on the code. When the semester ended, the students maintained control of their own repositories, beyond the context of the class.

Pragmatic, Not Altruistic

By that point in the semester, I have managed to convince the students why free and open source content available online is relevant to them and will advance their creative work. But that was the easy part; I have not yet managed to convince them why they should contribute too, why they should give back to the commons.  MANIFESTOS

I initially set up the final assignment of the semester as an arbitrary task: “Find an open source project, and contribute to it as a designer.” I was naïve, to say the least, and this ill-conceived task failed miserably. My students didn’t really understand the projects they chose, and the geek-talk on the mailing lists was incomprehensible jargon to them. The communities they approached did not have a frame of reference to appreciate the students’ contributions and were suspicious of the students’ motives. The first semester of the Open Source Design class ended in disappointment; it was clear we were on the wrong track.

In the following semester, I understood that assigning an arbitrary contribution was the wrong way to go. I had a smaller class that time around, and we chose to work together twice during the semester. First, we took part in the WordPress 2.7 icon design challenge. Later, the students chose to help some of their friends get their portfolios up online using the Indexhibit system. They wrote tutorials, they recorded screen-capture videos, they wrote code examples and style comments. Finally, they posted their contributions on the class blog and on the Indexhibit forums. Back then, the documentation available for Indexhibit was lacking and the students’ work was well received.

The second attempt had worked much better than the first one, but I knew its success had a lot to do with the qualities and personalities of the students in class. They enjoyed working together but at its core, the Indexhibit documentation was still a relatively altruistic contribution to a project that they were not actually planning to use after the class ended. If they were not going to benefit from their own contributions, why should they contribute again once they were no longer required to for a group assignment?

In the following semesters, I guided students to write the kind of tutorials they would have liked to find for themselves. Their tutorials focused on CSS, WordPress, Github… environments they used for their own benefit, in their own work. They not only covered the technical side of the technologies they documented; they also looked at the design aspects. At the end of the semester, the blog featured valuable, peer-reviewed and tested tutorials that benefited the students who had already completed the class. Months and years after each of these semesters ended, these publicly available contributions constantly receive thank-you comments from random users on the web. And still, it was not enough yet.

Toward a Collaborative Design Process

As far as knowledge sharing is involved, the tutorial approach has indeed proved itself. However, sharing technology and design tips is not collaboration. In this context, sharing has been happening post mortem to the creative act. To really challenge the design process and discover whether design can enjoy the benefits of the networked production  REVOLUTION revolution, I needed to focus my efforts on design collaboration.
Writing a wiki and coding software both benefit from a highly collaboration-friendly technology: text. Both types of content generation use a vocabulary predefined by language, which levels the playing field for the various contributors. It poses implicit prerequisites (literacy) and it funnels the contributions through a finite list of the syntax options standardized by language. For better or worse, both visual and behavioural languages are not confined within such rigid structures.  STANDARDS Ironically, it is the openness of these languages that makes networked collaboration harder.

In the last few decades, interface design emerged as an important cultural practice. There have been many attempts recently to coordinate and standardize this new language. The critical discussion of interface linguistics does not happen in the academic arena, it happens in the blogosphere. These interface linguists document design patterns and evaluate best practices for following them. Many of them are advocating semantic content and structured data, claiming such approaches would support efforts to index and process this content. The aim here is to serve artificial systems that are not intelligent enough to derive the meaning without external assistance. At the same time, these index-based and component-based approaches help structure the creative process as well. We see it in Wikipedia, where the way that articles are structured helps to focus and process the collaborative act. We see it in the structure of Cascading Style Sheets (CSS), where design decisions propagate through the document’s structure. And we see it in interaction modules, where code libraries encapsulate a single action which can still be modified externally through APIs.

The critical discussion of interface linguistics does not happen in the academic arena, it happens in the blogosphere.

The next frontier for the academic collaborative design lab that my students and I have been leading would have to involve the linguistics of interaction design. We will start drafting characters, then words and then sentences; some might call it building a structured visual language. We will try to define a syntax, then rearrange it and try again; some might call it designing modular systems. We will try to set standards, then extend them, then break them; some might call it developing a design guide. We will try to evaluate the legibility and readability of our messages; some might call it usability testing. We will try to discover a new collaborative paradigm for the design process; some might call it ‘Open Source Design’.

Andrew Katz

We are reaching the end of a great historical experiment. Printing (starting with Gutenberg-style presses  PRINTING and leading to huge industrial Heidelberg printing machines), radio broadcasting, 78s, vinyl, CDs, cinema, television: all these discoveries formed the technological backdrop for this experiment. All are (or were) media based on the principle of one-to-many distribution. To understand how this experiment was initiated, and how it is reaching its end, we need to understand a little of the nature of the businesses involved in these activities, and how the law enabled them to attain, and retain, that nature.  WYS ≠ WYG

As the public grew accustomed to the idea of passive consumption, creativity became increasingly marginalized.

The one-to-many broadcast distribution model distorted our perception of creativity. A key characteristic of one-to-many distribution is the role of the gatekeeper: the corporation which decides what we, the public, get to read, watch or listen to. The roles of creator and consumer are starkly defined and contrasted. As the public grew accustomed to the idea of passive consumption, creativity became increasingly marginalized, at least in those areas covered by copyright.  ACTIVISM Creativity was perceived as capable of flourishing only through the patronage of the movie studios, the record companies or the TV stations.

The industrial technology behind printing, broadcasting and vinyl duplication is expensive. Copyright law grants a monopoly which enables the distributors of media to invest in the capital infrastructure required for their packaging and distribution. These are the businesses which grew fat on the monopolies so granted, and they succeeded in convincing the public that it was the corporations’ role to provide, and the public’s role to pay and consume.

The original social approach to creativity did not become extinct as the dominant producer/consumer mode became established, even for media (like music, for example) where it applied. Andrew Douglas’s film Searching for the Wrong-Eyed Jesus shows that a visitor to the late 20th century Appalachians of the American South may well be asked: “What instrument do you play?” If the visitor answers: “I don’t play any”, the questioner will go on to say: “Ok, so you must sing.”

Steven Johnson in Where Good Ideas Come From makes the convincing case, based on a mass of evidence, that the social mode is more effective at maximizing creativity than relying on lone inventors and creators sitting in their garrets and sheds. Lone creators make good central figures in a compelling narrative – one reason why this meme is so popular. However, examining the truth behind the narrative often reveals that any creative work has much broader parentage than the story suggests. James Boyle in The Public Domain reveals the story behind the Ray Charles song I Got a Woman, tracing it backwards to Gospel roots, and forwards to the YouTube mashup George Bush Doesn’t Care About Black People, which sprang to prominence in the aftermath of Hurricane Katrina. To be sure, companies sometimes tried to foster a social model within the organization, but as Johnson points out, the benefits of social creation increase very dramatically with the size of the pool of participants, due to network effects. Until company silos are able to combine, the beneficial effects are relatively small.

Technology is Expensive

The internet has proved hugely disruptive.  TREND: NETWORK SOCIETY The sharing and social nature of Web 2.0 has enabled the rediscovery of the natural, human, social mode of creative endeavour. The social side of the internet is dominated by individuals acting in their private capacity, outside the scope of businesses. Companies were initially wary of losing control over the activities of their staff, and regarded internet social activities as time-wasting at best. In the worst-case scenario, businesses saw online social networking as a potential channel for employees to leak the company’s valuable intellectual property, and were therefore often slow to see the benefits of social interaction in terms of benefits to their creativity. As they have seen the benefits accrue to their competitors, however, compa-nies are starting to embrace a more open mode of business.

A return to the social mode is not without its setbacks. The internet radically lowered the barrier to entry for collaborative participation, and consequently increased the number of potential contacts that an entrant can make.  SHARING This immensely powerful engine of creativity comes with a brake that inhibits its full capacity: the effect of unfit-for-purpose copyright laws.

The copyright laws of the broadcast era do more to assist the incumbent gatekeepers (the film companies, music companies and so on) than to promote the social mode of  CO-CREATION collaboration. A side effect of the digital world is that almost every form of digital interaction involves copying of some sort. Whereas copyright law had nothing to say about sharing a book with a friend by lending it to her, in the digital realm, lending her a digital copy of Nineteen Eighty-Four to read on her e-book reader or computer involves a form of copying which may potentially violate copyright law.

The broadcast-model gatekeepers have used this unintended side effect of copyright law to their advantage, taking action against private individuals who had no intention of monetary gain, including mash-up artists,  REMIX home video enthusiasts and slash fiction authors. Incumbent rights holders, fearful of losing their profitable monopoly-based businesses, have sought to extend their rights ever further by lobbying governments (frequently successfully) to legislate for new and increased intellectual property rights, extending such rights far beyond their original purpose and intention. To put the issue in context, it is necessary to ask a fundamental question: what is copyright for?

Thomas Jefferson was one of the most lucid writers on the topic. He understood well the unique nature of knowledge:

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” ¹

A Monopoly is a Bad Thing

Jefferson did admit that creative people should be given a limited right of exclusive control over their creations. A monopoly is inherently a bad thing, a fact that was recognized in the late 18th century, as it is today. Nonetheless, a monopoly of control in the form of copyright or a patent was the most convenient way of enabling the creators to be remunerated for their work. And once the monopoly expired, the idea would be freely available to all and would become part of the common heritage of mankind, to be used without restriction by anyone. The necessary (but limited) monopoly includes ‘copyright’. The principle that the restrictions should be the minimum possible to achieve that aim should be copyright’s golden rule.That golden rule has been repeatedly ignored. The scope of protection has increased steadily over the last three hundred years, to the extent that the protection granted in Europe to the author of a novel, for example, lasts for seventy years after his or her death. Materials that are not restricted by intellectual property are considered to be ‘in the public domain’. Commentators have become increasingly strident in arguing that the public domain is a public good; it is likely that Jefferson would have agreed. In the same way that common land is an area where anyone can allow their animals to graze, the public domain has been described as a commons of knowledge, where potentially anyone can graze on the intellectual creations of others. The public domain has one crucial difference from a commons in the tangible world: a meadow open to all can easily be over-grazed and ruined, so that it becomes of use to no one (sometimes referred to as the ‘tragedy of the commons’). It is impossible to exhaust the commons of knowledge and ideas.

The Tragedy of the Commons

The modern ‘tragedy of the commons’ is that, just as the internet makes it easier to pass ideas and knowledge  KNOWLEDGE from one person to another (for “the moral and mutual instruction of man, and improvement of his condition”), it seems that legislation and the more extreme activities of the rights holders are making it more difficult for those ideas and knowledge to enter the commons in the first place. This is because the duration of intellectual property is constantly being extended (will the early Mickey Mouse films ever enter the public domain?), and so is its scope, as evidenced by the patenting of genes or plants. Increasingly, people are becoming aware of the value of the commons and are seeking to protect it. At the same time, we are gradually realizing that the monopoly granted by intellectual property laws is a blunt instrument, and that people are prepared to create for reasons other than the expectation of payment for the use of their creation. Copyright law does not always have to work against the commons. Free and open source software has been an undeniable success. Gartner confidently states that all businesses today use at least some free software in their systems; the Linux Foundation is predicting that free software will underpin a $50 billion economy in 2011. Following from these and other successes, the applicability of the open source model has been considered in other contexts.

The Creative Commons Licenses

One of the most prominent open source models has been the Creative Commons  CREATIVE COMMONS movement. Founded in 2001, Creative Commons has written a suite of licences which were inspired by the GNU/GPL, but which are intended for use in relation to a broad range of media, including music, literature, images and movies. The licences are drafted to be simple to understand and are modular, in that the rights owner can choose from a selection of options. The attribution option requires that anyone making use of the work makes fair attribution to the author; the share alike option is akin to the GPL, in that if a licensee takes the work and redistributes it (whether amended or not), then the redistribution needs to be on the same form of licence; the no derivatives option means that work may be passed on freely, but not modified, and the non-commercial option means that the work can only be used and distributed in a non-commercial context.

There are now millions of different works available under a Creative Commons licence: Flickr is just one content hosting site which has enabled Creative Commons licensing as a search option. There are, at the time of writing, nearly 200,000,000 Creative Commons-licensed images available for use on Flickr alone. Similar sites provide music and literary works under a Creative Commons licence. Creative Commons provide a legal infrastructure for designers and other creatives operating within the digital domain to adopt this model. They also offer an effective choice as to whether an appropriate model is GPL-style share-alike, or BSD style. Where designers’  DESIGNERS work moves into the physical world, matters become much less straightforward. The movement of hardware design into the commons has been difficult. The fundamental issues can be summarized as follows:

→ In the digital world, the creator has the choice of whether a GPL or BSD model is appropriate. This choice does not translate well to the analogue world.

→ Digital works are relatively easy to create and test.on low-cost equipment. Analogue works are more difficult to create, test and copy, which creates barrier-to-entry problems.

→ Digital goods are easy to transport; analogue goods are not. This creates a barrier to the communication necessary to get the maximum benefit out of network effects.

The barrier to entry for any participant in a digital project is remarkably low. A low-cost computer and basic internet access are all that is required to have a system capable of running the (free) GNU/Linux operating system, accessing (free) project hosting sites like sourceforge.com or koders.com. A vast range of tools required to develop software (such as GCC – the GNU Compiler Collection) are also available as free software. Copying purely digital works is trivially easy. Physical (or ‘analogue’) objects are a different matter.

Hardware development is likely to require more intensive investment in equipment (including premises in which the hardware can be placed), not just for development, but for testing. Electronic digital hardware is probably closest to software in terms of low barrier to entry: for example, the open-source Arduino microcontroller project enables an experimenter to get started with as little as $30 for a basic USB controller board (or less, if the experimenter is prepared to build the board). Arduino’s schematics, board layouts and prototyping software are all open source.  BLUEPRINTS However, Arduino-like projects represent the lowest barrier to entry in the hardware world.

Complications of Analogue

An Arduino-style project is essentially a hybrid of the analogue and the digital domains. Prototyping software makes it possible to develop Arduino-based hardware in the digital domain, where it retains all the characteristics of the digital world: ease of copying, the ability to upload prototypes to fellow contributors for commentary, assistance and the chance to show off. These are characteristics which enable network effects, and which make the open source model very powerful. It is only when the project is implemented as a physical circuit board that these characteristics are lost.

The analogue world is not always so simple. One of the most ambitious open source projects is the 40 Fires/Riversimple hydrogen car project, which has developed a small urban car (the Hyrban) powered by hydrogen, using a fuel cell/electric drivetrain. Elements of the design (such as power control software or the dashboard user interface) can be developed largely in the digital domain, but the development of motors, brakes, the body shell and so on are strictly analogue only.  WYS ≠ WYG Not only do these analogue elements present a large barrier to entry for interested tinkerers, but they also tend to restrict their ability to participate in the development community: a necessity if network effects are to work. It is, clearly, difficult to upload a car to a development site and say “can you tell me why the windscreen leaks?”

Copyright protects the expression of an idea. Retaining the same idea, but recasting the expression of it in a different form, does not infringe on the copyright.

Another significant issue is the lack of access to design software at a low cost. Software developers have access to high-quality tools like development environments and tools available for free under free software licences. There is no similar suite of CAD software, and proprietary CAD software is notoriously expensive. The barrier to entry is raised once again.

Many of these issues are surmountable, given time. Ever-improving simulation software means that more and more testing and prototyping can be undertaken in the digital domain. The introduction of 3D printers PRINTING like the RepRap means that it is becoming increasingly affordable and feasible to print physical objects, such as gears, from a variety of plastics. The lack of suitable CAD software is being addressed by a number of projects.

For designers, progress in open source tools, increased connectivity and so on makes the establishment of open source communities ever more feasible. The legal issues, however, are less straightforward.

So far, we have concentrated on copyright issues. In some ways, other forms of intellectual property pose greater challenges. Copyright protects the expression of an idea. Retaining the same idea, but recasting the expression of it in a different form, does not infringe on the copyright. The story of two people from warring tribes meeting, falling in love, and dying in tragic circumstances can be told in a myriad of different ways, each with their own independent copyright, none of which infringes on anyone else’s copyright. This has two practical consequences. The first is that if a creator creates something which he or she has not copied from something else, then the creator will not be in breach of copyright, even if their creation turns out to be very similar, or even identical, to someone else’s. The second is that if a component of something is found to be infringing on a copyright, it is possible to salvage the project by recasting the same idea in a different expression.  REMIX

Design Rights

Copyright also has the advantage of being (reasonably well) harmonized worldwide, and has also proved amenable to hacking (e.g. by Richard Stallman)  HACKING so that it can be used to guarantee openness in the code it covers. However, other forms of intellectual property protection are more problematic for designers.

This issue is linked to the distinction between the analogue and digital domains. Designs almost invariably start with some sort of drawing or description, which is protected by copyright as a literary or artistic work. Often, this material will be digital in nature. At this point, it is similar to software. Licensing options include the suite of Creative Commons licences. Once an item is created in the physical world, a different set of legal considerations applies.

The most obvious is design right. Unfortunately, design right is complex and uncoordinated. There are many different types of design rights, and they differ from country to country. In the UK, for example, there are four separate design right regimes operating simultaneously. Depending on the right in question, they cover aspects such as shape, texture, colour, materials used, contours and ornamentation. Registered designs are in many ways similar to patents; in fact, they are sometimes called petty patents or design patents. Infringement can be unintentional, and independent creation is irrelevant. Unregistered designs are more in the nature of copyrights, and are vulnerable to infringement only where copying has taken place. The very fact that registration of design rights is required in itself provides a barrier to entry for collaborative projects, whereas copyright arises automatically and without the necessity of registration. On a collaborative project, who will pay for the preparation of a design registration, and who will make the application and maintain it?

Patents

Patents provide a particular problem for both programmers and designers, as they can impinge on both the digital realm and the analogue realm. Patents are a protection on the idea itself. Regardless of how that idea is expressed, its expression would represent patent infringement. Independent invention does not excuse patent infringement. The only way to be sure that an invention does not infringe a patent is to do an exhaustive check in patent offices worldwide. Such checks are very rarely carried out, since the expense is enormous and creates a vast barrier to entry for small businesses. US law in particular applies a positive disincentive to search: if a search is undertaken, then the searcher can be deemed to have knowingly infringed a patent – even if their reasonable determination was that the patent was not infringed – and will be liable to triple damages as a consequence. Pressure groups are lobbying worldwide for a reform of the patent system and process, but at present it is clear that the system benefits incumbent large companies with an existing patent portfolio.

The upshot of the intellectual property issues is that the BSD model is the only viable option in the hardware, analogue world. In contrast, those operating wholly in the digital domain (which includes programmers, but which can also extend to digital creatives such as filmmakers, novelists or graphic designers) have the ability to choose whether they prefer the GPL model to the BSD model, for a number of reasons. In brief, the two main reasons are as follows:

Copyright, being largely universal, automatic, unregistered and long-lasting, is better suited to the development of a copyleft model than other forms of intellectual property. The difference in cost between copying and reverse engineering  WYS ≠ WYG (which is vast in digital world, but much smaller in the analogue world), makes the copyleft a less compelling problem. A more detailed discussion of these reasons is needed to clarify why they are pertinent.

The system benefits incumbent large companies with an existing patent portfolio.

If a GPL model were applied to hardware designs, in order to be effective, it would need to impinge on the ideas underlying the design (patents), or on the visual characteristics of the design (design rights). A GPL-style model based on patents would likely fail because of the cost, complexity, and time involved in applying for the patents – not to mention the necessity of keeping the invention secret prior to its publication, since part of the application process squares badly with the open source ethos. If the model were based on design rights, it would fail in relation to registered design rights, for the same reasons as for patents. If it were based on unregistered design rights, it would be unlikely to work because the scope and length of protection would be too short, and because the rights are insufficiently universal (although there is some scope for a limited GPL-style model in relation to unregistered design rights). Even if a GPL model were feasible in the world of hardware, there is an economic reason why it would be unlikely to work. The reasoning is as follows: the digital world makes things extremely easy to copy. Imagine a programmer wants to create some software based on a program with similar functionality to a word processor released under the GPL. The options are either to take the original GPL program, modify it, and release the result under the GPL; or to take the GPL program, reverse-engineer it, and rewrite a whole new program from scratch, which would be unencumbered by copyright restrictions. There is a vast difference in the amount of work involved in the two scenarios, and any programmer is likely to consider very seriously adopting the easier, cheaper and quicker option (modifying the original), where the ‘cost’ is licensing under the GPL. However, to offer a different example, even if there were a functioning mechanism for applying share-alike to a mechanical assembly, an engineer wishing to reproduce the mechanical assembly would, in effect, have to reverse-engineer it in order to set up the equipment needed to reproduce it. Copying a digital artefact is as simple as typing:

cp old.one new.one

Copying an analogue artefact is vastly more difficult. REPRODUCTION Consequently, there is little difference between slavish copying, which would invoke GPL-like restrictions, and reverse-engineering and re-manufacturing, which would not. In this case, it is much more likely that the ‘cost’ of GPL-like compliance would be greater than the benefits of having a GPL-free object. In conclusion, even if GPL-style licences were effective in the physical world, economics would tend to disfavour their use.

It can therefore be stated that designers operating in the analogue realm are likely to be restricted to an openness model more akin to BSD than to GPL. Their challenges are to make this model work, and to discourage free riders with a combination of moral pressure and a demonstration that playing by the community norms will be beneficial both to them, and to the community as a whole.

Benefiting from Connected Creativity

Designers and creators are increasingly able to benefit from the promise of the connected, social mode of creativity. The way was paved by free software pioneers, who skilfully hacked  HACKING the copyright system to generate a commons which has not only generated a huge global business, but also provided the software which runs devices from mobile phones through to the most powerful supercomputers. It provides the software which gives the developing world access to education, medical information and micro-finance loans and enables them to participate in the knowledge economy on similar terms to the developed nations.

Designers and creators are increasingly able to benefit from the promise of the connected, social mode of creativity.

The challenge for designers and creators in other fields is to adapt the model of software development to their own field of work, and to counter the extensive efforts of incumbent beneficiaries of the broadcast era to use ever more draconian legislation to prop up the outmoded business models. Ultimately, the social mode will win: it takes one of humanity’s defining characteristics, the fact that we are highly social and community-oriented, and uses it as the foundation of the entire structure. One-to-many works against this fundamental trait, but Nature will ultimately triumph.

GNU/GPL AND BSD LICENSES

In the late 1980s, computer programmer Richard Stallman realized that copyright law could be turned inside out to create a commons of computer software. The method he proposed was simple, but brilliant.

Software is protected by copyright. The software business model used in the 1980s involved granting customers permission (the licence) to use a specific piece of software. This licence was conditional on the customer not only paying the software publisher fee, but also adhering to a number of other restrictions (such as only using the software on one computer). Why not, Stallman reasoned, make it a condition of the licence that if you took his software and passed it on (which he was happy for people to do), then they had to pass it on, together with any changes they made, under the same licence? He called this sort of software ‘free software’: once a piece of software has been released under this sort of licence, it can be passed on freely to other people, with only one restriction: that if they pass it on, in turn, they must also ensure that it is passed it on in a way that guarantees and honours that freedom for other people.

In time, he reasoned, more and more software would be released under this licence, and a commons of freely available software would flourish. The most widely used version of the licence is the GNU General Public License version 2, known as the GPL. In the 19 years since it was issued, it has become the most commonly used software licence. The GPL is the licence at the core of Linux, the computer operating system which powers Google, Amazon and Facebook, and which enabled Red Hat to forecast revenue in excess of $1Bn in financial year 2010-11.

The software commons envisioned by Stallman not only exists; by any measure, it has been an overwhelming success. Its success can be measured in countless ways: the number of participants creating software for that GPL commons, the number of open source software programs in use, or the environments in which such software can be found. More than 90 of the 100 most powerful computers in the world run on GPL software, not to mention mobile phones and in-car entertainment systems; open source software is at the core of the business offerings of such large companies as IBM and Red Hat.

The Commons Analogy

The success of free software cannot be solely attributed to the GPL. The GPL extracts a price for using the commons. To risk taking the analogy too far, a landowner who has property adjoining the GPL commons and who wants to use it also has to add his own land to the commons. (Remember, this is the magical land of ideas which cannot be ruined by over-grazing.) This will have the effect of increasing the size of the commons as more and more adjoining landowners want to make use of the commons and donate their own land in the process. However, many of them may not want to join this scheme, either because they do not want to add their own land to the commons, or because they have already pledged their land to another commons.

Is it possible to generate a commons of ideas without forcing participants to pay the price of entry; without requiring that they add their own adjoining land to the commons? Is the compulsion of the GPL necessary, or is the social and community dynamic powerful enough to allow a similar commons of ideas to spring up on its own?

The software industry has given us several outstanding examples of this. Apache, the most popular web server software in the world, used by many of the world’s busiest web sites, is issued under a licence which does not ask users to pay the GPL price. Anyone can take the Apache code, and modify it and combine it with their other software, and release it without having to release any sources to anyone else. In contrast to the GPL, there is no compulsion to add your software to the Apache commons if you build on Apache software and distribute your developments, but many people choose to contribute in return even without this compulsion. FreeBSD, to take another example, is an operating system bearing some similarity to GNU/Linux which is licensed under a very liberal licence allowing its use, amendment and distribution without contributing back; nonetheless, many people choose to do so.

Free Riders

A parallel development to the GPL was the BSD licence, first used for the Berkeley Software Distribution (BSD). As opposed to the GPL, the BSD licence only requires the acknowledgement of the original authors, and poses no restrictions on how the source code may be used. As a result, BSD-licensed code can be used in proprietary software that only acknowledges the authors.

The GPL tackles an issue called the free rider problem. Because BSD does not compel people to contribute back to the commons, those who take advantage without contributing back are called free riders. The question is whether free riders really are a problem (as the GPL band would maintain), or whether they are (as the BSD band would maintain) at worst a cost-free irritant, and at best, a cadre of people who will eventually see the light and start to contribute, once they recognize the benefits. Supporters of both the GPL and BSD models of licensing have similar aims. In both cases, they seek to support a software commons which will enable the social mode of creativity to flourish.

While the BSD model could subsist in the absence of copyright, GPL relies (perhaps ironically) on copyright law to enforce its compulsion to share. It still remains an open question as to whether the better model is to use licensing to compel people to participate in the software commons, thus reducing the free rider problem (as with GPL), or whether voluntary engagement will result in a more active community (as with Apache). Designers working outside the digital domain will rarely have the chance to choose a GPL-style option.

RIGHTS AND LICENSING SCHEMES

The re-use of designs is governed mainly by copyright, design rights and patents. Traditional open licensing schemes have been based on copyright, as this is the main intellectual property right which impinges on software, the most fertile ground for openness.

Software licensing schemes include the GPL (which enforces copyleft) and BSD (which doesn’t). Software licences rarely work properly when applied to other works. For literary, graphic and musical works, the Creative Commons suite is more effective. They allow both copyleft (share alike) and non-copyleft options. They may work well when applied to underlying design documents, which are covered by copyright, and control the distribution of those documents, as well as the creation of physical objects from them, but (depending on the jurisdiction) their protection is unlikely to extend to copying the physical object itself. Some efforts have been made to create licences that cover hardware; the TAPR Open Hardware Licence is one example. However, these efforts have frequently been criticized for their lack of effectiveness.

www.opensource.org/licenses/index.html

CREATIVE COMMONS AND DESIGN RIGHTS

Creative Commons licensing is fundamentally based on copyright, and there is little clarity or consensus on how such licenses would operate in relation to design rights across the myriad different jurisdictions and types of rights.

Those designers operating purely in the realm of copyright will find that there is already an existing structure of support in terms of Creative Commons licences and associated communities. Where other forms of intellectual property impinge, matters are far more murky. The Creative Commons licences are arguably drafted to be sufficiently broad as to cover unregistered design in certain circumstances. However, since they were not drafted with design rights in mind, it cannot be assumed that the copying of a three-dimensional object will automatically fall within the scope of such a license.

www.creativecommons.org

STRUCTURE OF INTELLECTUAL PROPERTY

The rule of thumb for intellectual property is that all works are considered to be in the public domain, with intellectual property protection as the exception. However, this exception is highly diversified. Copyright protects the creative, original expression of an idea, whereas patents protect the idea itself and its technical specifications. Design rights cover aspects such as shape, texture, colour, materials, contours and ornamentation. Other forms of protection include trademarks, database rights and performers’ rights.

PREHISTORIC TOOLS FROM HACKED STONES ➝ LEARNING BY DOING / MUSHON ZER-AVIV

PHOTO: EL ÁGORA ➝ COMMONS.WIKIMEDIA.ORG

BIOTECHNOLOGY: HACKED VEGETABLES

PHOTO: FOENYX ➝ COMMONS.WIKIMEDIA.ORG

I HACKED YAHOO AND ALL I GOT WAS THIS LOUSY T-SHIRT

PHOTO: PREMSHREE PILLAI ➝ WWW.FLICKR.COM/PHOTOS/PREMSHREE

HACKED ROADSIGN

BRUCE DOWNS

HALLOWEEN AT THE MASSACHUSETTS INSTITUTE OF TECHNOLOGY

PAUL ➝ SOURCE: WWW.MITADMISSIONS.ORG/TOPICS/LIFE/HACKS_TRADITIONS/HACK_OR_TREAT.SHTML

THE HACKER LOGO, BASED ON THE GAME OF LIFE ➝ LIBRARIES OF THE PEER PRODUCTION ERA / PETER TROXLER

AUTHOR/OWNER UNKNOWN – SOURCE: CATB.ORG

SWAPPING ELECTRONIC G.I. JOE AND BARBIE, THE YES MEN

THE YES MEN ➝ THEYESMEN.ORG

A NEW GAMEBOY INSIDE AN OLD GAMEBOY

PHOTO: CRTDRONE ➝ WWW.FLICKR.COM/PHOTOS/56035206@N00/SETS/72157624009019424/

A CLASSIC MAC RUNNING ON OSX

PHOTO: WILLIE LÓPEZ ➝ WWW.FLICKR.COM/PHOTOS/PIXELMANIATIK/2133750549/

HACKING FOR DUMMIES

WWW.ETHICALHACKERGUIDE.COM

ANONYMOUS

PHOTO: VINCENT DIAMANTE ➝ HTTP://EN.WIKIPEDIA.ORG/WIKI/ANONYMOUS_(GROUP)