Notes: Chapter 8

1. Clay Shirky, “Supernova Talk: The Internet Runs on Love,” available at; see also Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations (New York: Penguin Press, 2008).

2. See Glyn Moody, Rebel Code: Linux and the Open Source Revolution (Cambridge, Mass.: Perseus Pub., 2001); Peter Wayner, Free for All: How Linux and the Free Software Movement Undercut the High-Tech Titans (New York: HarperBusiness, 2000); Eben Moglen, “Anarchism Triumphant: Free Software and the Death of Copyright,” First Monday 4 (1999),

3. Proprietary, or “binary only,” software is generally released only after the source code has been compiled into machine-readable object code, a form that is impenetrable to the user. Even if you were a master programmer, and the provisions of the Copyright Act, the appropriate licenses, and the DMCA did not forbid you from doing so, you would be unable to modify commercial proprietary software to customize it for your needs, remove a bug, or add a feature. Open source programmers say, disdainfully, that it is like buying a car with the hood welded shut. See, e.g., Wayner, Free for All, 264.

4. See Brian Behlendorf, “Open Source as a Business Strategy,” inOpen Sources: Voices from the Open Source Revolution, ed. Chris DiBona et al. (Sebastapol, Calif.: O’Reilly, 1999), 149, 163.

5. One organization theorist to whom I mentioned the idea said, “Ugh, governance by food fight.” Anyone who has ever been on an organizational listserv, a global production process run by people who are long on brains and short on social skills, knows how accurate that description is. E pur si muove.

6. See Bruce Brown, “Enterprise-Level Security Made Easy,” PC Magazine (January 15, 2002), 28; Jim Rapoza, “Open-Source Fever Spreads,” PC Week (December 13, 1999), 1.

7. “UK Government Report Gives Nod to Open Source,” Desktop Linux (October 28, 2004), available at

8. “Cases of Official Recognition of Free and Open Source Software,” available at

9. E. Cobham Brewer, The Dictionary of Phrase and Fable(London: John Cassell, 1894), 1111–1112.

10. Richard Epstein, “Why Open Source Is Unsustainable,” (October 21, 2004), available at .html.

11. For a seminal statement, see Moglen, “Anarchism Triumphant,” 45: “ ‘[I]ncentives’ is merely a metaphor, and as a metaphor to describe human creative activity it’s pretty crummy. I have said this before, but the better metaphor arose on the day Michael Faraday first noticed what happened when he wrapped a coil of wire around a magnet and spun the magnet. Current flows in such a wire, but we don’t ask what the incentive is for the electrons to leave home. We say that the current results from an emergent property of the system, which we call induction. The question we ask is ‘what’s the resistance of the wire?’ So Moglen’s Metaphorical Corollary to Faraday’s Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It’s an emergent property of connected human minds that they create things for one another’s pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what’s the resistance of the network? Moglen’s Metaphorical Corollary to Ohm’s Law states that the resistance of the network is directly proportional to the field strength of the ‘intellectual property’ system. So the right answer to the econodwarf is, resist the resistance.”

12. Benkler’s reasoning is characteristically elegant, even formal in its precision, while mine is clunkier. See Yochai Benkler, “Coase’s Penguin, or, Linux and the Nature of the Firm,” Yale Law Journal 112 (2002): 369–446.

13. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), 46–47.

14. See Karl Popper, The Open Society and Its Enemies (London: Routledge, 1945).

15. See

16. See, e.g., NASA’s “Clickworkers” experiment, which used public volunteers to analyze Mars landing data, available at

17. Benkler, “Coase’s Penguin,” 11.

18. Free Software Foundation,

19. Exhibit A: the Internet—from the software and protocols on which it runs to the multiple volunteer sources of content and information.

20. See, e.g., the Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); The Consumer Access Bill, HR 1858, 106th Cong. § 101(1) (1999); see also Council Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union, L77 (27.03.1996): 20–28.

21. See generally Julie E. Cohen and Mark A. Lemley, “Patent Scope and Innovation in the Software Industry,” California Law Review 89 (2001): 1–58; see also Pamela Samuelson et al., “A Manifesto Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94 (1994): 2308–2431.

22. Uniform Computer Information Transactions Act, available at

23. 17 U.S.C. § 1201 (2002).

24. This point has been ably made by Pamela Samuelson, Jessica Litman, Jerry Reichman, Larry Lessig, and Yochai Benkler, among others. See Pamela Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised,” Berkeley Technology Law Journal 14 (1999): 519–566; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001); J. H. Reichman and Paul F. Uhlir, “Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology,” Berkeley Technology Law Journal 14 (1999): 793–838; Lawrence Lessig, “Jail Time in the Digital Age,” New York Times (July 30, 2001), A17; and Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,”New York University Law Review 74 (1999): 354–446. Each has a slightly different focus and emphasis on the problem, but each has pointed out the impediments now being erected to distributed, nonproprietary solutions. See also James Boyle, “Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039.

25. William W. Fisher III, “Property and Contract on the Internet,” Chicago-Kent Law Review 73 (1998): 1217–1218.

26. See James Boyle, “Missing the Point on Microsoft,” (April 7, 2000), http://

27. See “Salam Pax,” Wikipedia, available at