On Funding Digital Public Works

* introduction
* righteous indignation on proprietary content from public funds
* post-scarcity economics and exponential growth
* post-scarcity information economics and non-profits
* scarcity still exists and may recur
* how copyright ownership corrupts the non-profit mission
* more subtle pollution problems
* is it "self-dealing" to exchange public property for salary?
* if you can't beat them, change them (and maybe that's best)
* how new alternatives can work
* why "new" alternatives need to work
* examples of fine-grained cooperation in action
* how things go wrong with current practice
* the tragedy of the New Alchemy Institute
* proprietary vs. free content producer example
* even designs for simple health appliances are not free
* digital public works are not physical public works
* patents, blueprints, and journal articles are "leftovers" today===
* what have funding policies in automotive intelligence wrought?
* the cycle of failure
* encouraging successful collaboration
* a sure thing
* please keep charitable content free; ask peers to do likewise


This was posted to the Virgle list, and includes stuff emailed years earlier.

More dusty stuff I wrote forwarded below -- made public now here mainly for future reference.

It includes idea on the legal structure of a non-profit which is chartered to only handle free works and after that the essay "On funding digital public works".

A shorter version of that essay is here:

This is all also indirect commentary on:
    "The Adventure of Many Lifetimes: Open Source Planet"
"Our civilization's most valuable export, meanwhile, will be intellectual property. The problems our Pioneers solve in the course of their world-building enterprise will represent an engine of invention in dozens of lucrative areas, from biotechnology to geology, physics to agriculture. We see the community's system of intellectual property development evolving from a community open source model to commercial open source (or perhaps we mean that the other way around?). ... How should an open source planetary development project interact with existing companies and markets? ... At what point should Martian property move from being distributed solely among Pioneers and open source investors to being traded to outside investors?"

So, when you get "fired" at Virgle -- it's out the airlock without a helmet? :-)

Or access to Virgle know-how and tools you helped build, which would be the same thing in the long run?

What kind of society would that be? :-(

We need a "post-scarcity" paradigm all the way through IMHO.

And advanced automation
plus social change ideas:
empower us to make a prosperous society that works for everyone on Earth or Mars or the Asteroids or Alpha Centauri or wherever.

A sci-fi novel on that theme:
    _Voyage from Yesteryear_ by the author James P. Hogan
Though in practice IMHO there will be more of a mix of meshwork and hierarchy than in _Voyage from Yesteryear_; see Manuel De Landa:
"Indeed, one must resist the temptation to make hierarchies into villains and meshworks into heroes, not only because, as I said, they are constantly turning into one another, but because in real life we find only mixtures and hybrids, and the properties of these cannot be established through theory alone but demand concrete experimentation."

IMHO the Earth, Mars, and ultimately the Universe will be better off if Billionaires like Virgin founder Richard Branson and Google co-founders Larry Page and Sergey Brin can learn to see Virgle-related-activities etc. as a hard fun *hobby* and not a serious *business* venture. :-)

    "Hard Fun" By Seymour Papert

See also:
    "Professional amateurs"
"Pro-Ams occur in populations that have more leisure time and live longer, allowing the pursuit of hobbies and interests at a professional level. For example, authors of encyclopedia articles have traditionally been paid professionals, but recently amateurs have entered the field, participating in projects such as Wikipedia. Other Pro-Am fields include astronomy, activism, surfing, software development, education, and music production and distribution. Open source/Free Software such as GNU/Linux was developed by paid professionals at companies such as Red Hat, HP and IBM together with Pro-Ams, and has become a major competitor to Microsoft."

Even if, like with, say, RedHat or Google, for a time,
may build businesses (or more: http://www.google-watch.org/gpower.html ) on,
  say, GNU/Linux or at the edges of the Pro-Am revolution.

And I know my writing and learning on freedom (and responsibility :-)
    "Freedom & Responsibility"
"Public Domain Stories: On funding digital public works"
would not be possible without something like Google. So there is positive feedback. :-)

Things are slowly changing from when I first wrote this stuff below.

Wikipedia is a big change.

And here is a good example of a non-profit doing lots of things right IMHO:
"The Concord Consortium is a nonprofit educational research and development organization based in Concord, Massachusetts. We create interactive materials that exploit the power of information technologies. Our primary goal in all our work is digital equity � improving learning opportunities for all students."
"We produce a large amount of high-quality educational software that is offered free of charge. Almost all of our software is open-sourced so you can adapt it to your own needs or use it as the basis for your own software development efforts."

Maybe "OpenVirgle" or whatever the name will be another:
But these trends will continue to play out :-) one place or another.

--Paul Fernhout

"Public Domain Stories: On funding digital public works" and "On funding digital public works" forwarded below:

-------- Original Message -------- Subject: Public Domain Stories: On funding digital public works Date: Fri, 06 Feb 2004 12:49:00 -0500 From: Paul D. Fernhout To: pk@publicknowledge.org

On your site I saw:
"Please email your story to pk@publicknowledge.org with "Public Domain Stories" in the header. We'll present your stories to legislators, press and the general public through a website, video and other media. Please provide your name and a phone number where we can reach you during the day and tell us if you would prefer to remain anonymous when we publish your story."

One thing I found in talking to a non-profit lawyer about forming a non-profit which is chartered to only handle free works is that it pretty much can't be done under US law. My reason for wanting to do this was to ensure any funds or effort or patents and copyrights (such as at:
http://www.gardenwithinsight.com/ ) which I or others donated to the
organization could be assured of only resulting in free works. Any restriction in the bylaws can be changed by the directors fairly easily, and any restriction in the articles of incorporation can be changed with only slightly more work (filing something with the state). About the only thing in our society that can really ensure non-profits maintain free access to patents or copyrights they hold is well written contracts between people who donate time or energy or patents or copyrights to the non-profits (volunteers, contributors, employees), and even then this level of freedom is only guaranteed to the extent the aggrieved party is willing to sue. So, essentially, non-profit law has no provision for organizations dedicated to public domain or free works. I think this at least is a flaw in non-profit law that could be remedied somehow -- making it possible to put in an irrevocable dedication of assets to free works when an organization is formed.

For reference here was what I had thought of putting in the articles of incorporation or bylaws, but it now seems must be crafted into contracts somehow:

"The following restrictions on the activities of the corporation are intended to ensure free licensing of the results of all the Corporation's efforts. "Free" as used in this document is intended to mean "free as in freedom" in the same way as the Free Software Foundation's (FSF's) current or future similar definition of "free"
licensing for software or other creative works of various types, or alternatively following the the Debian Free Software Guidelines, defined here:
Examples of free licenses are public domain, GPL, LGPL, GFDL, and the Apache license. For detailed examples see:
and related writings or commentary by the FSF's Richard M. Stallman (included here by reference). It is noted here that the meaning of
"free" especially as it applies to creative works (as opposed to technical works) may continue to undergo revision over time, but is is the intent here to maximize the ability of recipients of free works to use such free works in their preferred source form responsibly in a way entailing no direct financial cost for licensing for use or distribution, requiring no permission for the original author to incorporate the work without substantial changes into larger derivative and/or collective works which may be redistributed, and ideally (especially in the case of primarily technical works) requiring no direct permission from the original author(s) to create and/or distribute derivative works including modified versions of the free works (although such derivative works may be subject to licensing restrictions requiring the derivative works to also be licensed freely under terms similar to the original work). The specific restrictions on the Corporation's activities to ensure this are:
      A) that any copyrights and/or patents the Corporation creates
itself, or whose creation it directly supports in whole or in part, or which it receives as donations or otherwise comes to hold, must only be licensed under free licenses, and
      B) that any trademarks the Corporation creates itself, or whose
creation it directly supports in whole or in part, or which it receives as donations or otherwise comes to hold, will only used to support and distinguish endeavors which require the free licensing of all the resulting copyrights and/or patents, and
      C) that copyrights, patents, and/or trademarks held for any reason by
the Corporation may not be voluntarily transferred from the Corporation without contractual guarantees that future holders will abide by these restrictions, and that the Corporation is required to enforce these guarantees to the maximum extent feasible, and
      D) that the Corporation will minimize its creation, use, or handling
of any other proprietary or trade secret or confidential information to the greatest extent legally and practically possible, behaving in as transparent a fashion as is reasonably possible, including the full disclosure of all financial information in detail, and the avoidance to the maximum extent feasible of non-disclosure agreements undertaken by the Corporation, its employees, or it agents, and
      E) that in the event of the likelihood of an involuntary transfer of
copyrights, patents, trademarks, good will, trade secrets or other valuable intangibles from the Corporation such as from the result of a judgment against the Corporation, the Corporation must take all legal and feasible steps to prevent the transfer or to make a voluntary transfer to an appropriate non-profit Corporation as under section (C) or if appropriate place the item in the public domain. Notwithstanding any of the forgoing, as a special exception, the corporation may purchase mass marketed consumer products or consumer services such as, without limitation, computers and telecommunications services, which contain or rely on proprietary copyrights, patents, or trademarks (such as most current computer chips), but the organization is required to keep such purchases to a reasonable minimum, and to use free software and free content or products derived thereof in its daily operations whenever reasonably feasible."

I think that is the minimum sort of guarantee donors should expect before donating things to organizations that purport to use, distribute, and create "free" works.

For a desired project to create a free and open repository of information about how to make things, we also face apparently substantial legal risk from the DMCA and other laws which can make us liable for offensive content others post -- which has had a chilling effect on that project.

I'm also forwarding this essay I sent to the Markle Foundation back in 2001 in response to a request on their site for comments. I also have a slightly updated shorter version I created recently which is less whiny :-) but it leaves out some of the personal aspects, and that seems to be exactly what you want. [some snipped] [A shorter version of that essay is here:

I also have another broader related essay I can send about how to save significant money in many sectors of the US economy by non-profits and others adopting and promulgating a post-scarcity worldview. [Now at: http://www.kurtz-fernhout.com/oscomak/AchievingAStarTrekSociety.html ]

--Paul Fernhout

"On funding digital public works" forwarded below:

-------- Original Message -------- [snipped] Subject: On funding digital public works Date: Tue, 12 Jun 2001 12:51:10 -0400 From: Paul Fernhout Organization: Kurtz-Fernhout Software To: info@markle.org

Zoë Baird, President Markle Foundation


Here is a topic to consider for inclusion in the Markle Foundation's
"Policy for a Networked Society" program. From that Markle Foundation web site page:
> > The Policy for a Networked Society program addresses the > > issues created by the unprecedented changes occurring in > > our social, political, economic and legal systems as a result > > of expanding computing power, convergence, and the rise > > of a networked world. The program seeks to enhance the > > public voice in the consideration and resolution of domestic > > and international policies that need to be addressed in this > > new communications environment, with a specific interest > > in the protection of democratic values, individual liberties, > > universal access and consumer interests. ... > > We welcome ideas for topics that should be considered by the network.

Consider this email a contribution towards a "white paper" on why foundations and government agencies should require any digital public works they fund to be communicated to the public under free or open licenses. I apologize I have not had the time yet to make it shorter.

righteous indignation on proprietary content from public funds

As a software developer and content creator, I find it continually frustrating to visit web sites of projects funded directly or indirectly by government agencies or foundations, only to discover I can't easily improve on those projects because of licensing restrictions both on redistribution and on making derived works of their content and software.

Consider this license fragment from a project supported in 1993 as a PRI by the Markle Foundation:
"You will not modify, publish, distribute, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part, found on the Service." (I pick this example to illustrate the point in a familiar context, not to assume the Markle Foundation still promotes such licensing policies.)

The non-profit collaborative communications ecosystem is polluted with endless anti-collaborative restrictive terms of use for charitably funded materials (both content and software) produced by a wide range of public organizations. These restrictions are in effect acting like
"no trespassing -- toxic waste -- keep out -- this means you" signs by prohibiting making new derived works directly from pre-existing digital public works. The justification is usually that tight control of copyright and restricting communications of those materials will produce income for the non-profit, and while this is sometimes true, the cost to society in the internet age in terms of limiting cooperation is high, and in fact, I would argue, too high.

Unfortunately, the situation is even worse than that, because even without a copyright notice or license, the default under the law
is now that all works are copyrighted upon creation. So basically everything on the internet put up by non-profits without an explicit license granting permission to use, communicate, and/or make derivative works also has an invisible implicit "no trespassing" sign on it as well.

For example, consider this excellent essay you wrote on "Improving Life in the Information Age" as a president's letter on the Markle site:
Without an explicit license, and I see none in that document which includes neither of the words "copyright" or "license", I would have no clear right to email that file to friends, reduce it in size from 269K Acrobat file to about 10K of plain text, or permanently archive it should the Markle Foundation web server fail or simply be reorganized. Was that really your (or your staff's) intent when making that digital communication? Obviously you likely intended nobody rewrite your opinions, but does it take such complete restrictions on communicating your message and making related derived works to accomplish that? The fact that the Acrobat file has no document security restrictions :-( cannot be taken as a license to use it any way I want, especially given a legal climate where copying can now be a felony under the DMCA. These issues might not have seemed as important thirty years ago with a paper letter mailed to me because it would probably have been reasonable under copyright in 1970 (given that it is an open letter) to make a single expensive photostat for a friend, post the original physical copy on a bulletin board, or keep the physical copy in my own files indefinitely. (Actually, since the letter has no copyright notice, in 1970 it would have been in the public domain, protected only by "moral rights" and laws related to libel or misrepresentation or privacy.)

I apologize if that example is slightly embarrassing but it nonetheless shows the exact point I wish to raise in a Markle Foundation specific way -- how the non-profit sector could make better use of free or open licensing to communicate better. You're in good company, as most non-profit materials on the internet also lack explicit licenses for redistribution or any sort of modification. The bottom line is that the real problem won't be fixed by your putting a license at the bottom of your next president's letter or modifying that previous one. It will only be fixed when all non-profits everywhere on a daily basis take this licensing issue into account in all their communications. To avoid such irony myself, I added a license allowing redistribution at the end of this email, although, frankly, I myself don't normally do so with most letters I write.

I would prefer to use tools and protocols that made such licensing issues easier to take care of without thinking much about them all the time (if such tools or protocols existed, but in general they don't yet). The commercially dominated world (including to an extent W3C) spends most of its time thinking about how to restrict freedom to communicate, not how to ensure such freedom, which is obvious from the titles and author affiliations (ironically under "company") of most of the position papers here:
So is it really any surprise that the most common communication tools (including Adobe Acrobat) reflect this bias even as the world moves to clarify (an in practice probably further restrict) some of the things that can be legitimately done with digital objects as "fair use"?

This long (freely redistributable) email essay is born in part out of that repeated frustration of a desire to archive, communicate, and, in some cases, improve public content. As someone who (as part of a husband/wife team) has effectively given to the public a six-person year effort funded out of our own pockets (an educational garden simulator with source under the GPL),
I now feel enough righteous indignation and moral justification to get on this email soapbox on what should be done with internet content funded by public or tax-exempt money in educational and other arenas (not that you have to listen. :-)

I have also CC'd this to some groups or people I mention as doing a good job who have an interest in free or open content -- and that should not be taken to mean I am in any way formally connected with those people or speak for them or that they endorse any of my comments in any way.

post-scarcity economics and exponential growth

To understand my larger point, one must first understand where the physical technological capacity behind the information age is heading over the next thirty or so years.

Perhaps allowing content producing 501(c)3 non-profits to tightly control their copyrights made sense in the past. Driven by cuts in much non-profit funding in the 1980s and early 1990s, many non-profits moved to funding models requiring more entrepreneurship. For many non-profits, that has meant selling copyrighted materials, and they effectively became no different than commercial publishers -- except for receiving a charitable subsidy that perhaps allows break-even cost production for smaller audiences otherwise underserved by the the mainstream for-profit press. Acting as subsidized presses has been an important mission for non-profits, and both Cynthia and I have helped with it. We assisted NOFA-NJ in producing two versions of the New Jersey Organic Market Directory -- which was subsidized by among others the Geraldine R. Dodge Foundation.

But, I would argue, it no longer makes sense to enable non-profits to function mainly as subsidized publishers operating in an otherwise conventional for-profit way through selling copyrighted material. Assuming subsidized publishing made sense at some point, what has changed recently? Widespread internet use is one obvious thing. In general, the bigger picture is that a more cooperative "post-scarcity"
economy is emerging.
This post-scarcity economy is made possible by such things as:
* the exponential growth of technological capacity (including the
* increasingly widespread knowledge, and
* new ways of collaborating pioneered by free software and open source

Exponential trends aren't always obvious. Most people fail to comprehend that computers will likely be about a million times faster for the same cost in twenty to thirty years simply by doubling in price/performance every year or two (assuming our society doesn't meet with another disaster like war or plague before then). For example, almost everyone I ask about how much faster they think computers will be in 10 years says about 10 to 20 times faster, when they are more likely to be 100 to 1000 times faster. People all laugh in disbelief when I say I expect them to be a million times faster in twenty to thirty years based on what has already happened in the industry compared to thirty years ago.

Yet even conservative computer engineers say Moore's law will hold for at least ten years without many major changes in how things are done.
Computer expert Raymond Kurzweil discusses this (and more) in his essay on how people maintain an "intuitive linear view" despite the facts supporting the "historical exponential view":
He suggests that failure to take into account exponential growth is one reason we usually overestimate how much change can happen in the short term and underestimate how much change will happen in the long term. I've also written an essay on this topic as well:

Just one thing possible with today's computer technology is cars that drive themselves. I was in one around 1986 (ALVAN/NAVLAB at CMU)
when the computers to run it cost a million dollars. I have since heard of people who now use this technology routinely (although clandestinely for liability reasons) using a laptop that costs about $1000. Such technology could greatly change our society if widespread. It has the potential to give commuters hours more free time every day to do other things while being driven. It could possibly free up parents in suburbs from needing to chauffeur children. It could allow elderly people living in suburbs to be more self-reliant for longer. This technology exists today -- although there remain organizational issues to resolve, especially related to insurance and liability, before it becomes widespread.

What will computers 1,000 or 1,000,000 times faster make possible? Numerous people including Kurzweil speculate on this. Here is another person's positive spin (Hans Moravec):
And here is one person's negative spin (Bill Joy):
This is an attempt at laying out both perspectives side by side:
And this is some related commentary from numerous perspectives (centered around Jaron Lanier's comments):

There is still an opportunity to do what we can to make something good happen out of all this -- to help shape how post-scarcity society develops. Non-profits could have a major role to play in shaping that society humanely, rather than just watching a society evolve that is the ultimate conclusion of a competitive arms race among capitalist organizations creating ever increasing technological capacity of a certain amoral type to increase profits and reduce costs.

If one doubts computers can become a million-fold faster for the same price, consider that computers have already improved a million fold or so in price/performance over the previous thirty or so years as a historical exponential fact.
A new laptop computer can easily outcalculate the highest end early 1970s Mainframe which cost tens of thousands of times more. Likewise, bandwidth will be enormously improved in terms of price/performance in that time frame since a single optical fiber to the home could stream terabits or more per second.

Many scarcity-based economic assumptions about information production and distribution may cease to make sense in many arenas, as society continues to absorb the increased computing and communications capacity. Many scarcity-based assumptions already don't make sense with today's level of computing power and bandwidth. Similar changes are happening in other non-computer fields as well.

Or to look at it another way, Buckminster Fuller's "Comprehensive Anticipatory Design Science" is starting to flower despite inattention
like a forgotten rose bush. Hopefully we can avoid the thorns.

post-scarcity information economics and non-profits

Even in a "post-scarcity" or "gift" economy, some things remain scarce, like human attention or trust. This new economy is driven in part by peer status, which does have indirect physical, economic, and other benefits.
James P. Hogan wrote a novel "Voyage from Yesteryear" around 1982 on a similar premise describing a gift economy governed by status:

Nowhere is a post-scarcity economy more visible today than with content on the internet. However, does the funding plan for most digital public works made by non-profits incorporate a post-scarcity perspective?

There are a lot of non-profit projects being funded out there (especially educational and digital library ones) which have a component of attempting to charge for access to the results of charitably funded work as part of their business plan. Some completely restrict access (and redistribution) to a local paying community. In fact, most government funding agencies and foundations encourage such restrictions, on the (often flawed) assumption that such restrictions will make the project self-sustaining financially. Rather than single out another example, let me point as a contrast to a foundation:
and an organization it funds:
that are both doing a great job at enlarging the public domain as opposed to shrinking it.

An outdated scarcity perspective in the non-profit community is still manifesting itself, however. There remains a continued emphasis on charitable projects which include plans for restricting access to the resulting publicly funded digital works now, in the hopes of creating revenue streams later. The funded organization usually proposes continuing to improve the work itself under its solitary control using money derived from selling licenses to the work. Contrast this with, for example, the post-scarcity development of the GNU/Linux operating system, made by thousands of volunteers contributing improvements to an initial base contributed by Linus Torvalds and the Free Software Foundation (FSF) GNU project.

The old scarcity criterion towards selecting what makes a viable project (based on a recurring royalty stream for static content) is completely at odds with the new post-scarcity model (based more on streams of attention, status, service, and customization). The new collaborative development process made possible by the internet (resulting in a work made by sharing licenses to copyrights made by a distributed network of authors funded indirectly by other means) is fundamentally different than the old process (resulting in a work made by centralized copyright ownership with a development process funded by selling licenses to the result).

scarcity still exists and may recur

Certainly scarcity still exists in the world since 24,000 people starve to death daily
and billions of people still live in poverty.

Scarcity to the point of starvation has a personal meaning to me as one of my relatives (a great step-uncle) starved to death during World War II in the Netherlands (during the "hunger winter") when my mother was a teenager. As a result, my entire family has been and still is affected by my mother's reactive attitude towards food derived from living through that period of scarcity and watching her step-uncle die. However, these deaths are (and were) primarily for political, not technological, reasons.

I would argue that the copyright status of non-profit works (including ironically UN documents about agricultural techniques) is part of this political problem. Still, like with my mother, anyone who has lived through extreme scarcity may be forever changed and have difficulty adapting to new conditions. This is a topic James P. Hogan goes into in detail in "Voyage from Yesteryear" as a scarcity culture tries to conquer a post-scarcity culture.

Technology can help alleviate some political problems by helping currently limited charitable resources to do more. That is one reason we wrote our garden simulator -- so people could more easily learn to be self-reliant in growing their own food. But what is the point in making such a simulator if people who need it can't get it? That's one reason we made it free of cost. But since others could potentially make it better than we could, that is why we made it free in the sense of allowing derived works under the GPL license.

how copyright ownership corrupts the non-profit mission

Strangely enough, as a for-profit company, some of our biggest competitors are non-profits including groups with much larger staffs supported through universities and research institutes and funded by grants -- who sell their software at higher prices than ours. Frankly, we have a difficult time competing in this arena, but we also question to what extent their funding derives from software revenues.

Beyond the obvious financial advantages such non-profits have, we are also on unfair ground. Such non-profits can see our privately funded core technology platform, since our two non-free products draw on the public code base for our garden simulator. However, we can't see how their publicly funded systems work because they generally keep them closed and proprietary.

For example, there is on sale a $60 a copy product similar in some ways to our garden simulator but written by a non-profit group years after ours (apparently with NASA grant funding):
I'm not saying BioBLAST wasn't worth funding, or that it doesn't have some interesting features perceived as useful for its target academic audience compared to the garden simulator, but that group probably could have added those features onto the garden simulator, which was out with source under the GPL around two years before BioBLAST was released. There may be legitimate reasons why they wouldn't want to build on our privately funded work, but what really frustrates us is that we can't easily build on their publicly funded work if we wanted to. Their site hasn't been updated in over a year, so how long will it be before the software and content just fades away and NASA's "investment" is lost? There is no way we or anyone else could support BioBLAST or maintain it if we wanted to.

One "non-profit" project (funded in part by the German government and sheltered in a large research institute) even tried to steal our PlantStudio trademark and related good will last year, registering plantstudio.com and pointing it at their site. That created a legal tussle that has already taken almost half of the paltry $8000 or so gross direct revenue from our products (the total over the last three or so years). The problem is still not completely resolved almost a year later and has caused us quite a bit of distress affecting our other work. Pessimistically, such distress could have been part of their intent to disable a major competitor. Or maybe optimistically, they thought we were deserving of abuse both because we were "for-profit" and [price comparison deleted due to German law prohibiting it]. In any case, given that our net revenues for doing our educational projects including opportunity cost and interest would easily be minus one million dollars, this situation adds insult to (financial) injury. [And yes, it was foolish of us in hindsight to try to save money by not registering plantstudio.com ourselves earlier.]

This isn't a plea to subsidize our for-profit business -- but rather to say something is wrong both in how we are funding our own for-profit educational development work as "right livelihood" as well as in how non-profits in the same arenas are funding their work.

Conflicts between for-profit and non-profit work might be lessened if all non-profit content development work was put in the public domain or under some sort of free license (copylefted or not),
so everyone, for-profit and non-profit alike, could build on it in some way. That wouldn't help with trademark infringement issues, but fostering a related worldwide culture of benevolence, cooperation, and sharing in non-profits might, because that might in turn at least do more to promote an attitude of friendly competition in non-profit staff instead of combat over what might seem at first to be finite resources.

This is, however, most definitely a plea to think about how the tightly controlled ownership of copyrights can be corrupting people and organizations in the non-profit world -- because we have seen that first hand to our dismay. Please think deeply about the difference between
"free" content and "subsidized" content. There is a world of difference in terms of making derived works, since free content can be given away with permission to make derived works, whereas subsidized content can't.

Similarly, the common notion of "matching funds" breaks down when applied to whether a product is free (as in the French "libre" sense [think free speech], not necessarily "gratuit" sense [think free beer])
Since half the match needs to come from selling licenses to the work, this means derived works can't be easily allowed. Problems also arise when a developer matches free funds with a free license to a proprietary underlying platform, because the combination can then never be free in the sense of allowing derived works. For example, can I recompile SimHealth and make improvements or port it to new platforms?

In both cases, the "free" funds from charity are contaminated by the
"proprietary" contribution and the result is essentially proprietary (even when the price of the result is $0). It might be much better to have half as many truly free projects as opposed to twice as many proprietary ones, because everyone could potentially benefit from building on the free projects, so their value each might be (arbitrarily) 10 times that of proprietary ones.

more subtle pollution problems

This contamination also happens more subtly than one might think. For example, every Microsoft Word document or Adobe Acrobat document a non-profit group puts out also reinforces proprietary monopolies. Word and Acrobat are both "standards" but they are not in practice "open" or
"free" standards -- in part because they are very complex and in effect defined by equally complex proprietary implementations (even when in the Adobe case there is a published document defining the format).

One school of thought (mentioned recently by Alan Kay) maintains the only true standards are ones defined by freely available reference implementations, since any document with more than five lines will contain ambiguities. This argues for only using standards defined by a free implementation (as opposed to a proprietary one that is later documented).

The fact that non-profits, foundations, and government agencies distribute or request such proprietary document formats as primary sources (as opposed to HTML or XML or other alternatives) shows how deeply ingrained the proprietary data problem is. It is as fish to water -- most don't notice it, or if they do, they bow to necessity without even an apology.

Such policies can have direct negative impacts. For example, I know of one group who missed an annual application for a NASA grant because the applicant found out at the last minute their non-Adobe PDF file generating process didn't work as expected, and plain text was not acceptable. Yes, they cut things too close, but why add a hurdle requiring purchasing a proprietary program to get a public money?

is it "self-dealing" to exchange public property for salary?

Consider this way of looking at the situation. A 501(c)3 non-profit creates a digital work which is potentially of great value to the public and of great value to others who would build on that product. They could put it on the internet at basically zero cost and let everyone have it effectively for free. Or instead, they could restrict access to that work to create an artificial scarcity by requiring people to pay for licenses before accessing the content or making derived works.

If they do the latter and require money for access, the non-profit can perhaps create revenue to pay the employees of the non-profit. But since the staff probably participate in the decision making about such licensing (granted, under a board who may be all volunteer), isn't that latter choice still in a way really a form of "self-dealing" -- taking public property (the content) and using it for private gain? From that point of view, perhaps restricting access is not even legal?

Self-dealing might be clearer if the non-profit just got a grant, made the product, and then directly sold the work for a million dollars to Microsoft and put the money directly in the staff's pockets (who are also sometimes board members). Certainly if it was a piece of land being sold such a transaction might put people in jail. But because the content or software sales are small and generally to their mission's audience they are somehow deemed OK. The trademark infringing non-profit sheltered project I mention above is as I see it in large part just a way to convert some government supported PhD thesis work and ongoing R&D grants into ready cash for the developers. Such "spin-offs" are actually encouraged by most funders. And frankly if that group eventually sells their software to a movie company, say, for a million dollars, who will really bat an eyebrow or complain? (They already probably get most of their revenue from similar sales anyway -- but just one copy at a time.) But how is this really different from the self-dealing of just selling charitably funded software directly to Microsoft and distributing a lump sum? Just because "art" is somehow involved, does this make everything all right? To be clear, I am not concerned that the developers get paid well for their work and based on technical accomplishments they probably deserve that (even if we do compete for funds in a way). What I am concerned about is the way that the proprietary process happens such that the public (including me) never gets full access to the results of the publicly funded work (other than a few publications without substantial source).

I've restricted this to talking about copyrights, but patents only make this situation worse. Right now, a patent on MP3 technology held by a non-profit (the Fraunhofer-Gesellschaft, commissioned and funded by the Federal and L�nder governments)
is causing distress to free software developers, and their response is to invent a new audio encoding system.
(My response to similar distress could be seen as this effort to reinvent the non-profit sector entirely. :-)

Both these examples are by coincidence from Germany, but one could find similar examples in the United States. Likewise, Germany has many outstanding developers of free and open software,
    "Germany Leads In Open-Source Development"
so this situation reflects internal conflicts in German society as well.

I admit this self-dealing analogy may sound at first far fetched, but perhaps that is another sign of how bad the situation has become as old economic models of paper-based content distribution break down in the internet age.

Note: this is not to argue non-profits should not be able to assert
"moral rights" or "privacy rights" over various types of content they produce as the situation applies. For example an artist collective might not want their digital paintings modified (even if they can be freely redistributed), or clients at a clinic might not want their digital records made publicly available. Both are digital works, but in one case
"moral rights" may apply, and in the other "privacy rights" may apply. There will undoubtedly be gray areas as works fall between categories (e.g. a work of art telling how to do something).

if you can't beat them, change them (and maybe that's best)

One might be thinking right now that the interests of this husband/wife team I am a part of might be better served by joining a non-profit together or individually instead of running a money-losing for-profit educational simulation company on their own, subsidized by unrelated contracting work. That insight might well be right. We've thought about that as well as forming our own non-profit. Since all the advice we have read suggests it is better to join an existing non-profit if possible for various reasons instead of starting a new one, consider a few attempts we have made in this direction, since our experiences may help illuminate the current state of copyright ownership paradigm in the non-profit sector.

So, over a year ago I went to a local mid-sized non-profit organization with over a hundred staff members that does various types of support for local school districts. It's a great group of people with an innovative R&D department (rare for such organizations). I even got offered a job at a fairly good non-profit salary (around $65K + great benefits). Why did I not accept?

One big reason (not the only one) was that when I presented some of my ideas for new educational content, the immediate reaction from the director was, "We can turn this into an offering for schools and sell it on the web across the country!" Most people might have been elated. I was horrified.

The director was totally justified in what he said from his point of view, and that approach fit right into business-as-usual for them. While they do sell services (like web hosting) to schools, they also sell content, like teacher training materials. But it made me realize that it is the perception of content scarcity and the related mythology about how public digital works should be funded by society that most needs to change. Frankly, if there had not been other issues as well, I might have decided to wage that fight in that one organization. (And even in that conversation, I tried to present alternatives.) Still, I think that is the reception I would get right now at most non-profits.

I also interviewed at a foundation for an MIS manager position. Even though this foundation wanted to foster grassroots change to a more open and just society, they could not see anything inconsistent, for example, with using Microsoft Exchange on NT as their main mail platform (instead of Linux). I didn't get that job, probably in part by being annoying about Linux and Free/Open-source Software.

Not to be dissuaded too easily, I recently casually talked with a friend in the MIS department of a major well funded (non-profit) university about their copyright policies. He said essentially that university policy was that faculty controlled their copyrights, but staff gave copyrights to the university. He also mentioned a very complex set of problems has started coming up. Faculty sometimes collaborate on content and then one faculty goes to another university. Can the university still make the content available? What if the faculty member continues to collaborate from their new university? What if staff was involved in facilitating the collaboration and content production, as they almost always are? In short, collaboration at this university is on rocky legal ground. Would that be a situation I wanted to walk into as either a staff member or faculty? Would it be likely one I could fix against entrenched habits and perceived faculty rights?

Believe it or not, one of the reasons we remain a for-profit sole proprietorship is the complexity of non-profit law as it relates to copyrights and self dealing. For example, we contacted the Tides Center
several years ago to discuss fiscal sponsorship. Tides is a wonderful organization promoting among other things communications among non-profits and sent us their information packet. In it we discovered that for legal reasons related to fiscal sponsorship and self-dealing, Tides would need to own all the copyrights on anything we produced. While we in general would trust Tides more than anyone, there are several things that could go wrong with such an arrangement from our point of view. It might not be clear where the lines begun and ended with copyrights made for work given away for free and those sold to create revenue (say as part of our consulting operations). Tides might decide to play mother-hen and insist we sell copyrighted works we want to give away on some notion of fiscal responsibility. Tides might just get weird about the copyrights if they proved extremely valuable. Likewise, Tides might abandon us if the copyrights proved a liability. The last is not much of an issue for most content itself (Even if controversial) since Tides repeatedly defends progressive views. However, in the case of creating tools to help others create and share free content, we would potentially be creating a huge liability for the actual copyright holder, and so Tides might decide the risk was not worth it on very legitimate grounds relating to jeopardizing the rest of their mission. On the other hand, we as individuals with few assets have the asset of being "judgment proof". No doubt many of these issues could be addressed with effort if we wanted to get a grant so it is something we still consider. But they would be easier to address if the non-profit paradigm was different (e.g. we wouldn't have to worry at all about the stewardship of such publicly copyrights if held by another non-profit).

Aside from liability reasons, one reason to be a 501(c)3 non-profit is to get grants. But would such grants be available given how grantors may still look at things? For example, when we approached the NSF several years ago for funding for an open garden simulator available to everyone that was collaboratively extended (before we decided to just go ahead and release it with source anyway), the response was, "we don't see why you just don't sell it."
Granted we may have not been the best communicators, but we did explain why at length an open process made sense. The deeper issue we feel is more one of a conflict of scarcity and post-scarcity paradigms, even among those doing the giving, because in the rest of their lives scarcity economics may still seem to rule.

There are obviously a variety of non-profits and foundations, some of which may play by different rules. We might well still find local ones that match our interests, are improvable with a reasonable effort, or are willing to take legal risks compatible with their missions.

But the deeper issue in the context of the Markle Foundation's "Digital Opportunity Task Force" effort is that, in my opinion, in a post-scarcity internet economy I should not even have to ask a 501(C)3 non-profit if they will let me give away digital works I create in their employ, or worry that they might abuse such works in a proprietary way.

how new alternatives can work

Obviously any approach to content generation takes money too at the moment. Content developers usually need to buy food and pay rent, and that money comes from somewhere, often either from a client who needs related services, from other unrelated paying work (say, carpentry), or from parents, relatives, or credit cards. Coordinating volunteer contributions can be hard and thankless work, akin to editing a book, for which it can be hard to find a long-term volunteer, so such work often goes undone. (RedHat for example does some of this as a company.) However the concept of "right livelihood" implies there might be ways for a developer working in the public interest to get paid. For the next decade or two, grants can make a big difference for funding digital public works made by non-profit processes, especially domain specific applications or content which don't attract as much developer interest as programming languages, operating systems, and commonly used utilities.

There are also some longer term ideas in the works from various sources for voluntary payment systems that are so easy to use that people can spontaneously pay a dollar or so when enjoying a song or even a program. This is different in several respects from "shareware". For example, we use a non-voluntary "shareware" payment system built into two of our products (PlantStudio and StoryHarp software). However, as a consequence of needing to embed such a non-voluntary system we have not released the source for those or allowed making derived works. We would prefer to use a ubiquitous voluntary payment system or fund those works entirely by other means and make them completely free. We don't like the idea of making people feel bad about themselves or that they are criminals when for whatever reasons they don't pay for using those two products. Since cracked versions of both programs are floating around the net (we take it as a mark of quality :-) these restrictions, like cheap locks, only keep honest people honest anyway. Unfortunately, these restrictions also create criminals out of people who don't respect them, and thus these two works are ethically tainted because of that. If it is wrong to commit a crime, isn't it just as wrong to create an avoidable situation that makes someone into a criminal? For the $8000 or so we have earned from a few hundred very honest people, we may well have created thousands or tens of thousands of criminals. That is a real social
"external cost" to the shareware method of marketing.

Assuming people need to make a living, how can people who deal in public domain works get paid? One may object that such a "new" scheme of sharing non-proprietary knowledge created by charitable means can never work economically. However, there are perfectly capitalistic examples where it has worked already.

The "new" model of making money with public domain content is actually an old one related to guilds. Doctors and lawyers both make excellent livings working with a large body of public domain knowledge, interpreting it, customizing it, and applying it to client's specific situations. Both doctors and lawyers create new knowledge that is effectively put into the public domain in the form of medical journal articles or court proceedings. While the average person can be their own doctor or lawyer to an extent, there is so much to know including certain ways of reasoning that in practice one is usually better off getting some assistance from a professional (as well as getting some self-education to work well with that professional) than trying to go it alone.

Many times grants help researchers create more information for the medical or legal public domain. But those grants don't corrupt the process, because the results are essentially available to all practitioners on an equal basis.

There are some medical grants that produce drug or plant patents that probably are corrupting, but that is another issue. Patents are an example when science (which thrives on reference chains of journal articles) crosses over into technology (which thrives on incrementally improved artifacts -- and artifacts can be copyrighted or patented to prevent others from using them for a time).

To help a lawyer to understand free or open source software for example, just ask her or him to think about it in terms of the law itself -- from court proceedings to legislative records. While lawyers may pay for a service like Westlaw for convenience or practical necessity,
they are not paying to use the law itself, say when they make an argument in court.

Surely nobody would suggest the world was better off in the days of 18th-century England when a medical student had to crawl on top of a roof and look in from a skylight to find out the proprietary technique used by one group of secretive obstetricians to have a lower rate of infant and maternal mortality than their competitors:

This guild-like process has already started with public software such as GNU/Linux. Competent GNU/Linux system configuration experts are now in high demand and can get good wages for dealing in purely free software. One of the things that helps prove competence in this "guild" is having contributed to the GNU/Linux kernel.

[Note that historically guilds often kept their methods secret from outsiders; I'm not advocating that here.]

why "new" alternatives need to work

How different is the basic issue in the secretive obstetricians example above from when publicly funded non-profits put "no trespassing" signs around their copyrighted works, preventing anyone else from improving on them, or benefiting from them without paying a toll to the non-profit itself?

Toll collecting imposes other external costs. Just yesterday I heard a collision happen between a few cars two lanes over while driving at the Whitestone bridge's toll plaza -- another hidden cost of tolls. People could have died, say if an airbag killed a child improperly secured in a front seat. Likewise, I had my license plate scanned and checked as I paid a toll leaving an airport parking field (according to the automated display), resulting in an extra "privacy" toll not recorded on the receipt.

The tolls imposed by non-profits for licensing their copyrights can have similar negative external costs. Such tolls can contribute to causing people in developing nations to die because of lack of access to how-to information on agriculture. Such tolls can also contribute to creating a closed bureaucratic Orwellian society without privacy where every viewing of information is monitored so it can be billed (consider Acrobat Reader 5 which includes technology to scan your computer and communicate the results across the internet -- pick "Edit | DocBox | Preferences" to see the InterTrust warning and license). As mentioned earlier, such restrictions can also (through temptation) create criminals where none might have existed.

Frankly, if the non-profit world of copyright creation cannot provide a model by slowly moving to a post-scarcity economic structure, when such creation is already funded in large part by charity, how can the for-profit world survive the transition without complete and painful chaos?

Naturally, many non-profits like soup kitchens or Habitat for Humanity are already working on a service basis, and if they collect fees for services rendered, I'm not against that. I'm talking specifically about copyright and patent work here, which is some of the type of work Markle funds.

examples of fine-grained cooperation in action

How could post-scarcity economics be reflected in new ways of doing things by the non-profit sector?

The current growth level of the internet makes possible fine-grained voluntary collaboration on an unprecedented scale to cooperatively develop enormous creative works, exemplified by these three collaboratively developed sites:

Post-scarcity collaboration has also long been shown by many of the internet newsgroups, which include discussions and information on most topics of human interest, somewhat archived and indexed here:
At this point, I rely on these newsgroups to do a good job as a software developer when starting a new project with new technology. My technical questions are almost always asked and answered already.

In short, non-profits could work together to create in total a continually improving distributed library of free digital public works covering all human needs. This would be a very different side of the internet than the one full of tolls and restrictions that many for-profit interests are working towards.

For a hint of what this might someday become, read Theodore Sturgeon's short story written in the 1950s entitled "The Skills of Xanadu". That story helped inspire our (hibernating) OSCOMAK project:
and a related "moral license" concept:

how things go wrong with current practice

However, most non-profit organizations dealing with "know-what",
"know-how", or "know-why" content (i.e. science, technology, and art/philosophy) still follow the common practice of supporting their continued existence as they transition to the internet age by attempting to make money directly selling digital public works funded by grants, the same way they used to sell text books, blueprints, or art prints.

This model of fund raising has some serious negative consequences. The main one revolves around preventing collaboration by preventing easily making derived works. There are more subtle moral and ethical implications as well, which Richard Stallman points out, as the age old civic duty of sharing with a neighbor is made immoral and illegal (and repositioned linguistically as "piracy").
Naturally, promoting sharing still needs to balance both "moral rights"
of authors getting credit for their works or controlling some aspects of the presentation or alteration of aesthetic or opinion works (as opposed to functional ones), and "privacy rights" related to personal information. For more on these distinctions, see for example:

Given the ease of free content distribution on the internet, to make money from content, organizations must create an artificial scarcity of their content (including text and software). This entails using copyright to impose restrictions preventing anyone from making copies of their content, so people will pay for licenses to use their content. Since derived works are also copies in a way, organizations must also prevent others from making derived works.

This derived-works restriction in turns prevents cooperation through others easily building on the works, as it does in our case with NASA's BioBLAST. In theory, money changing hands will let things continue to happen, and sublicensing of content for derived works does happen to an extent in the commercial world. However, even if a non-profit organization is willing to license their works to others for a fee for making derived works, this entails royalty payments, carefully evaluating complex binding legal contracts, and other arrangements whose initial cost to set up and operate generally exceed any expected revenue of most subsequent charitable projects, and, further, force all derived works to be handled as commercial, not gift, transactions.

Essentially, instead of having permanent lasting benefits, the initial charitable investment made by some foundation or government agency into supporting a non-profit organization's content creation process just devalues over time as the content becomes obsolete or is forgotten by the very organization that created it -- since no one else with an interest in the work can maintain it.

The ironic thing is that most non-profits will probably fail to make enough money from selling their content to even justify the expenses of doing so, so the loss to humanity is for nothing more than a funding fantasy.

the tragedy of the New Alchemy Institute

Yet, there are millions of individuals on the internet who might continue to improve content developed initially by non-profits, if these individuals only had the right to do so (rights that can only be granted by the copyright holder).

For example, I have a large selection of publications created by the New Alchemy Institute on things like compost pile management, indoor fish farming, and geodesic dome greenhouse construction. I paid for those copies both for the information and to help support the institute. The New Alchemy Institute is now defunct. I have no right under copyright law to put these materials on a web site or to improve them , as much as I would like to do so (until about 100 years from now). Quite possibly obtaining such rights might cost more in time and money than creating such materials from scratch or completely rewriting them. Even if I got permission from someone previously affiliated with the New Alchemy Institute or its successors to do something with the materials, how could I be sure their information was accurate and their permission meaningful and legally binding? Sadly, decades of innovative and alternative non-profit R&D work done by dedicated and hardworking people at NAI is effectively lost as far as the internet audience is concerned. And that means, that R&D work is effectively lost to everyone in the world as the internet continues to supplant other forms of content distribution and use (like using inter-library loan).

In the past, when most information was sold on paper and was difficult to modify, perhaps it made sense for non-profits to raise funds by selling documents (as when I purchased the New Alchemy Institute materials). But now, this old habit based on an out-dated paradigm is preventing cooperation and collaboration to create the informational underpinnings of a post-scarcity society demonstrating knowledge democratization.

For me, the deepest tragedy of the New Alchemy Institute is somewhat personal. I visited NAI around 1989 and later gave an invited talk there to some interns, while a graduate student at Princeton. I wanted to make a library on sustainable technology and related simulations, and NAI had an extensive library on such topics and an interested member base and even some Macintosh computers. But we never connected -- in part because I was too shy and couldn't think of something coherent and fair to propose as a way out of my boxes of being a PhD graduate student and thinking in terms of a for-profit company selling proprietary software requiring a substantial investment, and out of their boxes of being mainly an agricultural technology R&D facility, selling products and papers via their catalogue, and giving interns room and board for doing manual labor. I was very saddened by the newsletter announcing their demise around 1991, because I felt that working together on a digital library of alternative technology we might have prevented that. [And ironically Richard Stallman with his Free Software vision in Cambridge was only about seventy-five miles away from NAI.]

For reference, all the NAI publications themselves are supposedly available through inter-library loan at the American Archives of Agriculture (AAA), located at Iowa State University. The library itself became part of a "Green Center" at the same location, but I am not sure if that is still in operation, and in any case NAI would have no way to grant permissions for putting any works but its own on-line. Such works would ultimately have to be rewritten from multiple sources to be put on-line, a project probably worth doing, but something that would take far more effort than putting on-line what exists.

proprietary vs. free content producer example

How can we prevent such tragedies from happening again and again, even for internet-connected non-profits? One possibility is simply for non-profits from the start to put their creative works under licenses allowing redistribution and the making of derived works. As a corollary, they must then obtain their funding from ways other than selling licenses to use copyrighted works. They can still sell permission to access an archive, as long as the works including the entire archive are freely redistributable once accessed.

Contrast, for example, this proprietary work of hundreds of appropriate technology publications sold as micro-fiche or CD-ROM which is still pretty much as it was ten years ago:
    "The Appropriate Technology Library"
with this blossoming free library to aid developing nations which is available directly over the web:
    "The Humanity Libraries Project"
Which one has more of a future given the internet? Which one could continue be improved if the supporting organization were to suddenly become defunct? Which organization and development process is then really the lower risk "investment" for a foundation grant?

The Humanity Libraries Project is the exception to the rule. The difficulties they face and the solutions they see to them (for example, starting a petition just to get the UN to freely license its content so people who need it can get it: http://www.humaninfo.org/join.htm ) just show how bad the situation has gotten and how ingrained the old habits are. Their petition idea helped inspire this essay on enlarging the issue to being about the copyrights of all non-profits, no just the UN and directly related NGOs.

Copyright for most government funded work goes to the for-profit contractor, who usually just sits on the work because it is more expensive and risky to market a copyright than to get another government contract. Copyright for most foundation supported work goes to the non-profit, who also usually just sits on the work or makes only token efforts at marketing because it is more expensive and risky to market a copyright than to get another foundation grant. Perhaps an occasional exception is museums who show in-house created digital works until they become obsolete in a restricted setting (generally entered only after the patron pays a general admission fee).

In some ways, the state of non-profit copyright ownership and licensing is so bad we don't even notice the issue anymore.

even designs for simple health appliances are not free

For example, where can one go to get a freely modifiable design including CAD files for even a simple health-related appliance like a wheelchair? Or worse, where is the community freely collaborating on improving wheel chair designs? Are a few dozen intentionally-vague patents on wheel chair design the best to be hoped for given the trillions of dollars of investments into public works, including vast amount of money spent on medical research?

Even if one found a wheel chair design with CAD files on the internet (say, as a student project), could one be sure one could use or improve it in terms of licensing? What is going wrong here, when something so basic as wheel chair design is not freely available?

digital public works are not physical public works

The fundamentally flawed concept is that digital public works are like physical public works. When one creates a physical public work like a bridge, it may make sense to charge a toll to pay for its construction or upkeep -- although even that is questionable, see for example:

This physical public works paradigm is unfortunately then applied to thinking about most digital public works, and there is a major flaw in the analogy. A bridge does not require much marketing. It's highly visible by the nature of what it is and how it is built. Things are different in the content and software realm. Marketing costs for any commercially successful software product are typically ten times that of creation costs. Many well funded marketing efforts fail. So, almost all projects funded by foundations with an intent to be marketed later using other funds will fail because the funds won't materialize. Likewise, because the costs of production are small relative to marketing, there is usually little value in other's licensing the works (at typically inflated fees) as opposed to just making new ones since the marketing costs are the dominating factor.

Word-of-mouth marketing strategies can lower marketing costs, but it may increase support costs, and it also often takes years. This is far beyond the funding horizon of most non-profits with paid staff. Freely distributed collaborative efforts like Linux may survive long enough for word-of-mouth to help them -- but that requires a different approach to licensing.

patents, blueprints, and journal articles are "leftovers" today===

Plenty of public money is being spent -- it just is not connecting to the community as digital public works. This failure to connect is also in part because of another notion -- that patents and scientific journal articles as funding "leftovers" are sufficient detail to support a free technological civilization.

For an example of why this doesn't work, researchers at NASA just discovered NASA doesn't have the rights to the 3D CAD models of the International Space Station or the Space Shuttle. They had wanted to make a virtual reality model of those for further research and development of ergonomic design. Such plans are now on hold until new arrangements can be worked out with the contractors.

Funding organizations need to break out of the mindset that the organization doing the work to create something (in this case a NASA contractor) should necessarily be the one to shepherd that work in the future, and that in order to shepherd the work, their exclusive ownership of most of the aspects of the work is justified. Both these premises are flawed in the internet age. One group can create something under a free license and another group can extend it if they have the interest. A group who initially creates something under a free license can shepherd a process involving members of the public contributing under similar free licenses.

what have funding policies in automotive intelligence wrought?

Consider again the self-driving cars mentioned earlier which now cruise some streets in small numbers. The software "intelligence" doing the driving was primarily developed by public money given to universities, which generally own the copyrights and patents as the contractors. Obviously there are related scientific publications, but in practice these fail to do justice to the complexity of such systems. The truest physical representation of the knowledge learned by such work is the codebase plus email discussions of it (plus what developers carry in their heads).

We are about to see the emergence of companies licensing that publicly funded software and selling modified versions of such software as proprietary products. There will eventually be hundreds or thousands of paid automotive software engineers working on such software no matter how it is funded, because there will be great value in having such self-driving vehicles given the result of America's horrendous urban planning policies leaving the car as generally the most efficient means of transport in the suburb. The question is, will the results of the work be open for inspection and contribution by the public? Essentially, will those engineers and their employers be "owners" of the software, or will they instead be "stewards" of a larger free and open community development process?

Open source software is typically eventually of much higher quality
and reliability because more eyes look over the code for problems and more voices contribute to adding innovative solutions. About 35,000 Americans are killed every year in driving fatalities, and hundreds of thousands more are seriously injured. Should the software that keeps people safe on roads, and which has already been created primarily with public funds, not also be kept under continuous public scrutiny?

Without concerted action, such software will likely be kept proprietary because that will be more profitable sooner to the people who get in early, and will fit into conventional expectations of business as usual. It will likely end up being available for inspection and testing at best to a few government employees under non-disclosure agreements. We are talking about an entire publicly funded infrastructure about to disappear from the public radar screen. There is something deeply wrong here.

And while it is true many planes like the 757 can fly themselves already for most of their journey, and their software is probably mostly proprietary, the software involved in driving is potentially far more complex as it requires visual recognition of cues in a more complex environment full of many more unpredictable agents operating on much faster timescales. Also, automotive intelligence will touch all of our lives on a daily basis, where as aircraft intelligence can be generally avoided in daily life.

Decisions on how this public intellectual property related to automotive intelligence will be handled will affect the health and safety of every American and later everyone in any developed country. Either way, the automotive software engineers and their employers will do well financially (for example, one might still buy a Volvo because their software engineers are better and they do more thorough testing of configurations). But which way will the public be better off:
* totally dependent on proprietary intelligences under the hoods of
their cars which they have no way of understanding, or instead
* with ways to verify what those intelligences do, understand how they
operate, and make contributions when they can so such automotive intelligences serve humane purposes better?

If, for example, automotive intelligence was developed under some form of copyleft license like the GNU General Public License,
then at least car owners or their "software mechanics" would be assured they could have access to the software in source form to ensure safe operation. What might be "street legal" in terms of software modifications might be a different story -- in the same way people can't legally drive with a cracked windshield or a broken headlight. For example, software changes might need to first be proven safe in simulation before being provisionally "street legal". But, the important thing is, foundations or government agencies funding code development could insist on some form of free licensing terms for automotive intelligence as a matter of public policy.

There are many other areas of human activities that the exponential growth of technology will effect. Automotive intelligence is just one of them that is here now and which I am familiar with from tangential interactions at universities with people developing it. In enough time similar issues will arise for the software behind household robotics or intelligent devices that assist the elderly or handicapped. The IBOT wheelchair by Dean Kamen using complex software to balance on two wheels is just the beginning of such devices.

Note the IBOT wheelchair was developed entirely with private funds it seems, so the reasoning in this essay does not apply directly to it. Also, in general Dean Kamen is a role model of a socially responsible for-profit inventor. Still, the issue arises of whether "Johnson & Johnson" should be funding such development, as was the case, as opposed to, say, the "Robert Wood Johnson Foundation", as was not, given the public policy issue of whether individuals should be continually dependent for personal needs on proprietary software. In either case it would be worth it to pay billions for such innovation, and the public will pay that in the end as a toll on for such devices.

There is a real question here of how our society will proceed -- mainly closed or mainly open. It is reflected in everything the non-profit world does -- including the myths it lives by. The choice of myth can be made in part by the funding policies set by foundations and government agencies. The myth that funders may be living by is the scarcity economics myth. How does that myth effect the digital public works funding cycle?

the cycle of failure

Essentially, most digital public works funded by the government or foundations follow this process:
* public money is paid to some organization to develop some seemingly
useful digital work either as a "prototype" or as a "product",
* the contractor argues it is important to create an artificial scarcity
for the work through copyright to ensure future support of new versions of the work by the contractor without the need for future grants,
* without marketing, which is almost always more expensive than expected
(everyone hopes word-of-mouth will be enough for an overnight success), the work fails to attract enough interest to justify continued distribution and minimal support costs,
* the work is quickly outdated given limited original investment in it
and rapidly changing platforms and needs, plus the PI wants to move onto other things, and so,
* the cycle repeats, since an organization that has learned how to get
one grant probably knows better than anything else how to get another.

Very rarely, the project is a "success" in the sense of being able to become self sustaining economically after generally a large number of funding cycles, such as with automotive intelligence. At that point, the idea is "commercialized" often by the private sector and often someone makes a lot of money.

To an extent, the logic behind all this is similar to when the US Forest service puts in $100 of logging roads for $1 in logging fees, because supposedly cheap access to timber will promote the US economy and welfare of US citizens (even if the timber gets sold to Japan).

In the forest example, it is the public wilderness and those who would enjoy it spiritually or physically who suffer. In the automotive intelligence example, it is the public domain of copyright that suffers, and likely also public privacy and public safety. However, the same logic could be applied to the results of creating a directory of organic food suppliers or a book about how to achieve world peace. Restricting access to all of them is a result of the same scarcity mythology, and the exponential growth of technology requires a new funding mythos.

encouraging successful collaboration

To break that cycle, what needs to be done?

The mythology of funding needs to shift to fostering the creation of free works of public value. There needs to be a faith that such works if they are of value will eventually attract further support (from public or private sources).

How can that new mythology be implemented on a practical basis? Here are some ideas: 1. Support free content creation processes more than specific products. 2. Support people and organizations participating in those processes, either those making free content or those shepherding free processes. 3. Don't encourage organizations to become self supporting by selling licenses for copyrights or patents. Suggest instead they sell services, customization, or memberships if they want to become self-supporting -- but such things are hard to do so don't insist on them. 4. Reward with more grants people and organizations who actually make important free content (however that is judged).

It is very hard to make effective grants, no matter how knowledgeable, hardworking, and dedicated the foundation staff and board is. Michael Phillips talks about this in the book "The Seven Laws of Money" based on his experience on the board of the Point Foundation. So obviously, this is all easier said than done. Actually, Michael Phillips argues in practice it is impossible to give successful external grants, but perhaps this new funding mythology of supporting free content may change the granting landscape enough that some external grants will produce good things, since at some point grant applicants could be judged on a portfolio of previously developed free content in addition to perceived public value for proposed new efforts.

a sure thing

What is an immediate thing the Markle Foundation could do to get more digital public works built which address the foundation's interests of a Policy for a Networked Society, Interactive Media for Children, and Information Technologies for Better Health? Both my wife (Cynthia Kurtz) and I have created public products at our own expense (such as the six person-years spent to make our garden simulator). We are still interested in free content creation processes, but have been limited until recently in what we could do by basically having to work our way back up to a zero net-worth over the last three years (mainly at IBM) to pay back what we borrowed to complete our simulator and some other educational and aesthetic projects (PlantStudio and StoryHarp software). An investment in our work, say, by hiring us as staff members at the Markle Foundation, with an employment agreement allowing us to create public standards supporting free content creation processes, and allowing us to distribute whatever content we create under free or open licenses will at least ensure that there will be a few more public digital works in the world. We can send resumes if there is interest. But frankly, if you just look at our garden simulator you will see we are competent and committed. And if you look at our comments online such as at: http://groups.google.com/groups?ic=1&th=bc41381803b7e0c0,11 [now at:
] (where we attempt to shift the paradigm of digital rights management tools from "preventing unauthorized use" to "ensuring the right to freely use and communicate" such as to address the tools/protocols issue raised at the start of this essay) you will see we are insightful and innovative. We've both programmed a lot (thirty+ years in total), and we are both working for IBM as contractors. I'm contracting through June with IBM Research on XSLT standards. Cynthia is contracting with the IBM Institute for Knowledge Management on storytelling based communications and complexity. Cynthia is especially interested in issues relating to teaching tolerance and preserving indigenous knowledge and folklore. I'm more interested in developing a library of sustainable technology along with better processes for collaborative development of new free works by using clear licenses governing the use of all related communications. However, while our content generation activities are low legal risk, any work I do in the area of tools to help share information is of high legal risk, and the Markle Foundation might justifiably decide not to take on such a liability (even if it does relate to its larger mission).

please keep charitable content free; ask peers to do likewise

But even if you don't consider working with us, please, please look seriously at the copyright policies of individuals and organizations you do fund. Please insist all the creative work you fund is communicated to the public under free or open licenses.
And please encourage other peers in foundations and government agencies to do likewise (such as through the Digital Opportunity Task Force). That way, even if we don't work directly with you on our own projects, at least others like us can build on top of the efforts of people you do fund. That would at least be a big improvement over the current situation.

-Paul Fernhout Kurtz-Fernhout Software


Developers of custom software and educational simulations Creators of the free Garden with Insight(TM) garden simulator

Copyright 2001-2008 Paul D. Fernhout License: Verbatim copying and distribution of this entire email is permitted in any medium, provided this notice is preserved. Note: I believe "fair use" of this work includes copying of short sections with attribution for the purpose of discussion.