Law in the Internet Society

Introduction

In this paper I examine Eben's argument that anarchism produces inherently superior functional goods when the marginal cost of production of each new unit equals zero. Specifically, I employ the arguments of David Stark and Gina Neff in their article "Permanently Beta" and Eli Noam's arguments in "The Economics of User Generated Content and Peer-to-Peer: The Commons as the Enabler of Commerce," since both of these suggest that there are conditions at the micro level which provide additional insight into the set of conditions under which his argument works.

Efficacy and Efficiency of Anarchic production

Eben's argument rests on the efficacy and efficiency of the free software movement following the adoption of theGeneral Product License (GPL). The evidence for productivity under the auspices of the GPL and other types of open source licenses is ever more plentiful - Samba, Mediawiki, Apache, Firefox - the list goes on. Few are now willing to defend the "closed" proprietary model (See Shawn Shell for the only article I could find from a quick search of Google and Google Scholar). Microsoft does so yet even they have opened a open source lab which seemingly seeks to benefit from external contributions of resources though doesn't license them in a "free" manner. Moreover, it is generally accepted that the success of free and open source software proves that it is of a comparable quality and reliability as that of proprietary software. These advantages are underpinned by the fact that if the code doesn't quite work as needed the technologists have the ability to fix it themselves, and no less importantly, technology executives, avoid the game playing inherent in selection processes for software licenses, and can be confident that they won't be left managing proprietary tools for which support is either no longer available or suddenly 30% more expensive. Without question, the facts on the ground suggest that free software production works and works well.

Open Source Production under a "free software" model

Considering Eben's claims for anarchic production more closely, though, there is a need to recognize the importance of the GPL for several reasons:

(a) Eben suggests the GPL is the greatest achievement of Richard Stallman (Moglen, Anarchism Triumphant). This claim is notable since the development of the GNU operating system and its subsequent marriage with the Linux project was no inconsequential success in itself.

(b) The GPL, and its derivatives, are what differentiates free software from merely open source software and though a number of projects don't use the GPL license it is entirely reasonable to conclude that without this legal artifact the groundswell of participation may not have occurred as it has.

That said, it is curious that a relatively modest legal document enforced through the norms and mechanisms of the state is thought critical to facilitating anarchic production since you might define such production as "lacking order, regularity, or definiteness" if you draw upon the Merriam-Webster definition of the term anarchic. Moreover, since anarchy, as defined by The Concise Oxford Dictionary of Politics is "the view that society can and should be organized without a coercive state," it suggests that despite its unconventionality calling this this mode of production "anarchic production" is not quite appropriate. The mode of production that works as a result of the GPL operates as a result of the existence of state enforced mechanisms. At the micro level production occurs through loose organizational structures, which David Stark might call heterarchical, which contain some level of order and definiteness. Additionally, it coexists with profit seeking firms, seemingly fruitfully for both parties, suggesting that despite its success is far from independently anarchic.

Micro structures and Second Order Effects

Undoubtedly the internet society, a state of societal operation that is underpinned by an electronic network, is a necessary condition for the viability of peer produced, zero marginal cost, digital goods, yet the success of such a mode of production requires a richer definition. (For me the seeming anarchy in the mode of production inherent in the development of free code is perhaps more a result of a lack of understanding of the properties of such assemblages of people than anything else.) However, explaining that this mode of production can occur doesn't explain why it does occur.

Stark and Neff in their article "Permanently Beta" identify the properties of the digital as privileging a mode of production that is forever unfinished, yet also one that is populated by "a hodgepodge of formal and informal organization[s]" alongside "practicing communities." Noam in his article specifically identifies a narrow context, at the beginning of an innovation cycle where community production of content has its advantages and argues thus using strictly micro-economic arguments. What Noam doesn't accept is that his lifecycle may, if one accepts Stark and Neff's arguments, never include a phase that privileges either the oligopolistic or monopolistic firm. There may never come a point where enclosing what has been produced inside a private entity occurs. (Perhaps some products in the future will always be of the people, by the people, for the people?)

Explaining why it does occur, and is currently so successful requires a recognition that artifacts such the GPL have been central to its success, that it arisen in a context in which it has aided (and been aided by) profit seeking firms seeking to use its products in order to make a profit on other non zero marginal cost goods. Identifying all these artifacts, and the particular properties of the network, including the actors within the networks which succeed, is a task only just begun.

"Free" software is succeeding not only because the internet society exists, or as Yochai Benkler might write, peer production, is possible, but also because of the existence of a set of licenses, an economic environment which aids it, and the uncertainty reduction benefits users acquire independent of the mode of production (but not the licensing regime) itself. These artifacts and second order uncertainty reducing effects are as important to its success as its efficacy and efficiency.

Conclusion

It is for these reasons that I argue the word anarchy is inappropriate and that there is more to the success of free software than an argument that the net permits collaboration.

-- TomGlaisyer - 25 Oct 2008

If anyone has any comments on this please feel free to add a comment

A possible negative result of open-source software development:

http://www.engadget.com/2008/10/29/motorola-expected-to-cut-more-jobs-as-it-simplifies-around-andro/

-- MarcelEggler - 29 Oct 2008

 

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r17 - 12 Dec 2008 - 15:57:26 - TomGlaisyer
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