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Governing Values-Centered Tech Non-Profits; or, The Route Not Taken by FSF

A few weeks ago, I interviewed my friend Katherine Maher on leading a non-profit under some of the biggest challenges an org can face: accusations of assault by leadership, and a growing gap between mission and reality on the ground.

We did the interview at the Free Software Foundation’s Libre Planet conference. We chose that forum because I was hopeful that the FSF’s staff, board, and membership might want to learn about how other orgs had risen to challenges like those faced by FSF after Richard Stallman’s departure in 2019. I, like many others in this space, have a soft spot for the FSF and want it to succeed. And the fact my talk was accepted gave me further hope.

Unfortunately, the next day it was announced at the same conference that Stallman would rejoin the FSF board. This made clear that the existing board tolerated Stallman’s terrible behavior towards others, and endorsed his failed leadership—a classic case of non-profit founder syndrome.

While the board’s action made the talk less timely, much of the talk is still, hopefully, relevant to any value-centered tech non-profit that is grappling with executive misbehavior and/or simply keeping up with a changing tech world. As a result, I’ve decided to present here some excerpts from our interview. They have been lightly edited, emphasized, and contextualized. The full transcript is here.

Sunlight Foundation: harassment, culture, and leadership

In the first part of our conversation, we spoke about Katherine’s tenure on the board of the Sunlight Foundation. Shortly after she joined, Huffington Post reported on bullying, harassment, and rape accusations against a key member of Sunlight’s leadership team.

[I had] worked for a long time with the Sunlight Foundation and very much valued what they’d given to the transparency and open data open government world. I … ended up on a board that was meant to help the organization reinvent what its future would be.

I think I was on the board for probably no more than three months, when an article landed in the Huffington Post that went back 10 years looking at … a culture of exclusion and harassment, but also … credible [accusations] of sexual assault.

And so as a board … we realized very quickly that there was no possible path forward without really looking at our past, where we had come from, what that had done in terms of the culture of the institution, but also the culture of the broader open government space.

Katherine

Practical impacts of harassment

Sunlight’s board saw immediately that an org cannot effectively grapple with a global, ethical technological future if the org’s leadership cannot grapple with its own culture of harassment. Some of the pragmatic reasons for this included:

The [Huffington Post] article detailed a culture of heavy drinking and harassment, intimidation.

What does that mean for an organization that is attempting to do work in sort of a progressive space of open government and transparency? How do you square those values from an institutional mission standpoint? That’s one [pragmatic] question.

Another question is, as an organization that’s trying to hire, what does this mean for your employer brand? How can you even be an organization that’s competitive [for hiring] if you’ve got this culture out there on the books?

And then the third pragmatic question is … [w]hat does this mean for like our funding, our funders, and the relationships that we have with other partner institutions who may want to use the tools?

Katherine

FSF suffers from similar pragmatic problems—problems that absolutely can’t be separated from the founder’s inability to treat all people as full human beings worthy of his respect. (Both of the tweets below lead to detailed threads from former FSF employees.)

Since the announcement of Stallman’s return, all top leadership of the organization have resigned, and former employees have detailed how the FSF staff has (for over a decade) had to deal with Richard’s unpleasant behavior, leading to morale problems, turnover, and even unionization explicitly to deal with RMS.

And as for funding, compare the 2018 sponsor list with the current, much shorter sponsor list.

So it seems undeniable: building a horrible culture has pragmatic impacts on an org’s ability to espouse its values.

Values and harassment

Of course, a values-centered organization should be willing to anger sponsors if it is important for their values. But at Sunlight, it was also clear that dealing with the culture of harassment was relevant to their values, and the new board had to ask hard questions about that:

The values questions, which … are just as important, were… what does this mean to be an organization that focuses on transparency in an environment in which we’ve not been transparent about our past?

What does it mean to be an institution that [has] progressive values in the sense of inclusion, a recognition that participation is critically important? … Is everyone able to participate? How can we square that with the institution that are meant to be?

And what do we do to think about justice and redress for (primarily the women) who are subjected to this culture[?]

Katherine

Unlike Sunlight, FSF is not about transparency, per se, but RMS at his best has always been very strong about how freedom had to be for everyone. FSF is an inherently political project! One can’t advocate for the rights of everyone if, simultaneously, one treats staff disposably and women as objects to be licked without their consent, and half the population (women) responds by actively avoiding the leadership of the “movement”.

So, in this situation, what is a board to do? In Sunlight’s case:

[Myself and fellow board member Zoe Reiter] decided that this was a no brainer, we had to do an external investigation.

The challenges of doing this… were pretty tough. [W]e reached out to everyone who’d been involved with the organization we also put not just as employees but also trying to find people who’ve been involved in transparency camps and other sorts of initiatives that Sunlight had had run.

We put out calls for participation on our blog; we hired a third party legal firm to do investigation and interviews with people who had been affected.

We were very open in the way that we thought about who should be included in that—not just employees, but anyone who had something that they wanted to raise. That produced a report that we then published to the general public, really trying to account for some of the things that have been found.

Katherine

The report Katherine mentions is available in two parts (results, recommendations) and is quite short (nine pages total).

While most of the report is quite specific to the Sunlight Foundation’s specific situation, the FSF board should particularly have read page 3 of the recommendations: “Instituting Board Governance Best Practices”. Among other recommendations relevant to many tech non-profits (not just FSF!), the report says Sunlight should “institute term limits” and “commit to a concerted effort to recruit new members to grow the Board and its capacity”.

Who can investigate a culture? When?

Katherine noted that self-scrutiny is not just something for large orgs:

[W]hen we published this report, part of what we were hoping for was that … we wanted other organizations to be able to approach this in similar challenges with a little bit of a blueprint for how one might do it. Particularly small orgs.

There were four of us on the board. Sunlight is a small organization—15 people. The idea that an even smaller organizations don’t have the resources to do it was something that we wanted to stand against and say, actually, this is something that every and all organizations should be able to take on regardless of the resources available to them.

Katherine

It’s also important to note that the need for critical self scrutiny is not something that “expires” if not undertaken immediately—communities are larger, and longer-lived, than the relevant staff or boards, so even if the moment seems to be in the relatively distant past, an investigation can still be valuable for rebuilding organizational trust and effectiveness.

[D]espite the fact that this was 10 years ago, and none of us were on the board at this particular time, there is an accounting that we owe to the people who are part of this community, to the people who are our stakeholders in this work, to the people who use our tools, to the people who advocated, who donated, who went on to have careers who were shaped by this experience.

And I don’t just mean, folks who were in the space still—I mean, folks who were driven out of the space because of the experiences they had. There was an accountability that we owed. And I think it is important that we grappled with that, even if it was sort of an imperfect outcome.

Katherine

Winding down Sunlight

As part of the conclusion of the report on culture and harassment, it was recommended that the Sunlight board “chart a new course forward” by developing a “comprehensive strategic plan”. As part of that effort, the board eventually decided to shut the organization down—not because of harassment, but because in many ways the organization had been so successful that it had outlived its purpose.

In Katherine’s words:

[T]he lesson isn’t that we shut down because there was a sexual assault allegation, and we investigated it. Absolutely not!

The lesson is that we shut down because as we went through this process of interrogating where we were, as an organization, and the culture that was part of the organization, there was a question of what would be required for us to shift the organization into a more inclusive space? And the answer is a lot of that work had already been done by the staff that were there…

But the other piece of it was, does it work? Does the world need a Sunlight right now? And the answer, I think, in in large part was not to do the same things that Sunlight had been doing. …

The organization spawned an entire community of practitioners that have gone on to do really great work in other spaces. And we felt as though that sort of national-level governmental transparency through tech wasn’t necessarily needed in the same way as it had been 15 years prior. And that’s okay, that’s a good thing.

Katherine

We were careful to say at Libre Planet that I don’t think FSF needs to shut down because of RMS’s terrible behavior. But the reaction of many, many people to “RMS is back on the FSF board” is “who cares, FSF has been irrelevant for decades”.

That should be of great concern to the board. As I sometimes put it—free licenses have taken over the world, and despite that the overwhelming consensus is that open won and (as RMS himself would say) free lost. This undeniable fact reflects very badly on the organization whose nominal job it is to promote freedom. So it’s absolutely the case that shutting down FSF, and finding homes for its most important projects in organizations that do not suffer from deep governance issues, should be an option the current board and membership consider.

Which brings us to the second, more optimistic topic: how did Wikimedia react to a changing world? It wasn’t by shutting down! Instead, it was by building on what was already successful to make sure they were meeting their values—an option that is also still very much available to FSF.

Wikimedia: rethinking mission in a changing world

Wikimedia’s vision is simple: “A world in which every single human can freely share in the sum of all knowledge.” And yet, in Katherine’s telling, it was obvious that there was still a gap between the vision, the state of the world, and how the movement was executing.

We turned 15 in 2016 … and I was struck by the fact that when I joined the Wikimedia Foundation, in 2014, we had been building from a point of our founding, but we were not building toward something.

So we were building away from a established sort of identity … a free encyclopedia that anyone can edit; a grounding in what it means to be a part of open culture and free and libre software culture; an understanding that … But I didn’t know where we were going.

We had gotten really good at building an encyclopedia—imperfect! there’s much more to do!—but we knew that we were building an encyclopedia, and yet … to what end?

Because “a free world in which every single human being can share in the sum of all knowledge”—there’s a lot more than an encyclopedia there. And there’s all sorts of questions:

About what does “share” mean?

And what does the distribution of knowledge mean?

And what does “all knowledge” mean?

And who are all these people—“every single human being”? Because we’ve got like a billion and a half devices visiting our sites every month. But even if we’re generous, and say, that’s a billion people, that is not the entirety of the world’s population.

Katherine

As we discussed during parts of the talk not excerpted here, usage by a billion people is not failure! And yet, it is not “every single human being”, and so WMF’s leadership decided to think strategically about that gap.

FSF’s leadership could be doing something similar—celebrating that GPL is one of the most widely-used legal documents in human history, while grappling with the reality that the preamble to the GPL is widely unheeded; celebrating that essentially every human with an internet connection interacts with GPL-licensed software (Linux) every day, while wrestling deeply with the fact that they’re not free in the way the organization hopes.

Some of the blame for that does in fact lie with capitalism and particular capitalists, but the leadership of the FSF must also reflect on their role in those failures if the organization is to effectively advance their mission in the 2020s and beyond.

Self-awareness for a successful, but incomplete, movement

With these big questions in mind, WMF embarked on a large project to create a roadmap, called the 2030 Strategy. (We talked extensively about “why 2030”, which I thought was interesting, but won’t quote here.)

WMF could have talked only to existing Wikimedians about this, but instead (consistent with their values) went more broadly, working along four different tracks. Katherine talked about the tracks in this part of our conversation:

We ran one that was a research track that was looking at where babies are born—demographics I mentioned earlier [e.g., expected massive population growth in Africa—omitted from this blog post but talked about in the full transcript.]

[Another] was who are our most experienced contributors, and what did they have to say about our projects? What do they know? What’s the historic understanding of our intention, our values, the core of who we are, what is it that motivates people to join this project, what makes our culture essential and important in the world?

Then, who are the people who are our external stakeholders, who maybe are not contributors in the sense of contributors to the code or contributors to the projects of content, but are the folks in the broader open tech world? Who are folks in the broad open culture world? Who are people who are in the education space? You know, stakeholders like that? “What’s the future of free knowledge” is what we basically asked them.

And then we went to folks that we had never met before. And we said, “Why don’t you use Wikipedia? What do you think of it? Why would it be valuable to you? Oh, you’ve never even heard of it. That’s so interesting. Tell us more about what you think of when you think of knowledge.” And we spent a lot of time thinking about what these… new readers need out of a project like Wikipedia. If you have no sort of structural construct for an encyclopedia, maybe there’s something entirely different that you need out of a project for free knowledge that has nothing to do with a reference—an archaic reference—to bound books on a bookshelf.

Katherine

This approach, which focused not just on the existing community but on data, partners, and non-participants, has been extensively documented at 2030.wikimedia.org, and can serve as a model for any organization seeking to re-orient itself during a period of change—even if you don’t have the same resources as Wikimedia does.

Unfortunately, this is almost exactly the opposite of the approach FSF has taken. FSF has become almost infamously insulated from the broader tech community, in large part because of RMS’s terrible behavior towards others. (The list of conference organizers who regret allowing him to attend their events is very long.) Nevertheless, given its important role in the overall movement’s history, I suspect that good faith efforts to do this sort of multi-faceted outreach and research could work—if done after RMS is genuinely at arms-length.

Updating values, while staying true to the original mission

The Wikimedia strategy process led to a vision that extended and updated, rather than radically changed, Wikimedia’s strategic direction:

By 2030, Wikimedia will become the essential infrastructure of the ecosystem of free knowledge, and anyone who shares our vision will be able to join us.

Wikipedia

In particular, the focus was around two pillars, which were explicitly additive to the traditional “encyclopedic” activities:

Knowledge equity, which is really around thinking about who’s been excluded and how we bring them in, and what are the structural barriers that enable that exclusion or created that exclusion, rather than just saying “we’re open and everyone can join us”. And how do we break down those barriers?

And knowledge as a service, which is without thinking about, yes, the technical components of what a service oriented architecture is, but how do we make knowledge useful beyond just being a website?

Katherine

I specifically asked Katherine about how Wikimedia was adding to the original vision and mission because I think it’s important to understand that a healthy community can build on its past successes without obliterating or ignoring what has come before. Many in the GNU and FSF communities seem to worry that moving past RMS somehow means abandoning software freedom, which should not be the case. If anything, this should be an opportunity to re-commit to software freedom—in a way that is relevant and actionable given the state of the software industry in 2021.

A healthy community should be able to handle that discussion! And if the GNU and FSF communities cannot, it’s important for the FSF board to investigate why that is the case.

Checklists for values-centered tech boards

Finally, at two points in the conversation, we went into what questions an organization might ask itself that I think are deeply pertinent for not just the FSF but virtually any non-profit, tech or otherwise. I loved this part of the discussion because one could almost split it out into a checklist that any board member could use.

The first set of questions came in response to a question I asked about Wikidata, which did not exist 10 years ago but is now central to the strategic vision of knowledge infrastructure. I asked if Wikidata had been almost been “forced on” the movement by changes in the outside world, to which Katherine said:

Wikipedia … is a constant work in progress. And so our mission should be a constant work in progress too.

How do we align against a north star of our values—of what change we’re trying to effect in the world—while adapting our tactics, our structures, our governance, to the changing realities of the world?

And also continuously auditing ourselves to say, when we started, who, you know, was this serving a certain cohort? Does the model of serving that cohort still help us advance our vision today?

Do we need to structurally change ourselves in order to think about what comes next for our future? That’s an incredibly important thing, and also saying, maybe that thing that we started out doing, maybe there’s innovation out there in the world, maybe there are new opportunities that we can embrace, that will enable us to expand the impact that we have on the world, while also being able to stay true to our mission and ourselves.

Katherine

And to close the conversation, I asked how one aligns the pragmatic and organizational values as a non-profit. Katherine responded that governance was central, with again a great set of questions all board members should ask themselves:

[Y]ou have to ask yourself, like, where does power sit on your board? Do you have a regenerative board that turns over so that you don’t have the same people there for decades?

Do you ensure that funders don’t have outsize weight on your board? I really dislike the practice of having funders on the board, I think it can be incredibly harmful, because it tends to perpetuate funder incentives, rather than, you know, mission incentives.

Do you think thoughtfully about the balance of power within those boards? And are there … clear bylaws and practices that enable healthy transitions, both in terms of sustaining institutional knowledge—so you want people who are around for a certain period of time, balanced against fresh perspective.

[W]hat are the structural safeguards you put in place to ensure that your board is both representative of your core community, but also the communities you seek to serve?

And then how do you interrogate on I think, a three year cycle? … So every three years we … are meant to go through a process of saying “what have we done in the past three, does this align?” and then on an annual basis, saying “how did we do against that three year plan?” So if I know in 15 years, we’re meant to be the essential infrastructure free knowledge, well what do we need to clean up in our house today to make sure we can actually get there?

And some of that stuff can be really basic. Like, do you have a functioning HR system? Do you have employee handbooks that protect your people? … Do you have a way of auditing your performance with your core audience or core stakeholders so that you know that the work of your institution is actually serving the mission?

And when you do that on an annual basis, you’re checking in with yourself on a three year basis, you’re saying this is like the next set of priorities. And it’s always in relation to that that higher vision. So I think every nonprofit can do that. Every size. Every scale.

Katherine

The hard path ahead

The values that the FSF espouses are important and world-changing. And with the success of the GPL in the late 1990s, the FSF had a window of opportunity to become an ACLU of the internet, defending human rights in all their forms. Instead, under Stallman’s leadership, the organization has become estranged and isolated from the rest of the (flourishing!) digital liberties movement, and even from the rest of the software movement it was critical in creating.

This is not the way it had to be, nor the way it must be in the future. I hope our talk, and the resources I link to here, can help FSF and other value-centered tech non-profits grow and succeed in a world that badly needs them.

Surviving 2020 on Twitter

I’m a political junkie, perhaps in some ways more now than ever. And yet, I’m posting very little about the 2020 election on Twitter. An old friend with similar political compulsions asked how I’m doing it. The answer is ironically too long for Twitter, so here goes.

Reduced my Twitter political inputs

Step 1 was to simply reduce the amount of political stuff that I see when I go to Twitter. I see all kinds of other wonderful stuff instead! What I did:

  • Unsubscribe from all ‘news’ feeds on twitter—@nytimes, @cnn, etc. I use other mechanisms (email, actually visiting a website) to get them daily at most. More generally, I aggressively turn off all news notifications on my phone. If the missiles launch and I need to hug my loved ones, someone will text me.
  • Unsubscribe from people I don’t know personally. For me, that’s basically all celebrites (except Lin-Manuel) but if that sounds too aggressive, you can Marie Kondo your follows with the help of the Tokimeki Unfollow tool. Two (small) exceptions for me:
    • Have they taught me something I didn’t know, because they’re giving me diverse perspectives not in my personal network? That can be troubling/non-joyful, but still valuable.
    • Have they given me opportunities for real-world action that you can’t get in some other way? For me, this is primarily local organizations — several San Francisco bike, transit, and YIMBY activists. (I find this to almost never be the case from national media, because the opportunities for practical action are too limited.)
  • Turn off pure retweets with the Turn Off Retweets tool. In my experience, pure retweets are highly likely to be more angry/emotional, and less informative. Yes, there was some FOMO here. I got over it very quickly. If it is important, I see it eventually.
  • Mute (aka filter) political words aggressively. Here are Twitter’s instructions. My word list: all the primary candidate’s names; Trump; President; debate. I’m sure I’ll add more.

(optional) Replace with better news sources

I still feel the need for a lot of politics news. I subscribe to them via non-Twitter mechanisms. This is local as much as possible, or in some cases national news for very specific needs. For example, I still very much feel the need to understand global warming, so that I can target my giving in that space, so I read heated.world and the Washington Post’s Energy 202.

I use Feedbin to subscribe to newsletters (and yes, some RSS feeds still) so that they stay out of my email inbox. (Most of the same ‘aggressively unsubscribe’ applies to my email inbox too…)

(hard, but helpful) come to terms with the world as it is, and act in that framework

At some point in the past few years, I accepted that I’m going to have a baseline level of anger about the state of the world, and that I have to focus on what I can change and let go of what I can’t. (Twitter anger is the latter.) So what can I change? Where is my anger productive?

I’ve found that doing things offline—for me, mostly giving money—really helps. In particular, giving to causes that seek systemic (usually, that means political/government) change like 350.org and local activist groups, and giving a lot, and regularly. This, frankly, makes it a lot easier for me to ignore anger online — each new tweet is not likely to make me be more angry, or give more, because I’m already basically giving what I can. Being confident about that really reduced my FOMO when I started filtering aggressively.

I hear from non-parents/non-startup-founders that physical-world activism (door-knocking, phone banking, local gov meeting-attending, etc.) can be great in this way too but sadly I can’t confirm :(

(I also want to acknowledge that, in the current state of the world, ‘letting go’ gets harder the less privilege you have. I have no great response to that, except to say that I empathize and am trying to fight for you where and how I can.)

Improving my outputs

Having done all that, here’s how I try to improve the Twitter environment for others:

  • If I must RT or otherwise share politics news, I only quote tweet. I try to add useful context. What can I add that others can’t? If I can’t add something, if I’m just amplifying anger, I try to shut up instead.
  • If I must be angry, I’ve tried to follow a rule that I only express that offline if I am also telling other people who are angry how to constructively address the problem. I don’t just say “I’m so mad about global warming”, say “I’m mad about global warming, here’s what I’m doing to help fix it, you can too“. If I don’t have a ‘here’s what I’m doing’ to add to it … I go back to ‘figure out what I can do’.

This isn’t perfect

Twitter has made me a literally better person, because it has exposed me to viewpoints I don’t have in my daily life that have made me more empathetic to others. It has changed my politics, making me vastly more open to systemic critiques of US center-left politics. So I’m reluctant to say ‘use it less, particularly for politics’. But I feel like it’s the only way to stay sane in 2020.

Complying with Creative Commons license attribution requirements in slides and powerpoint

When I was at Mozilla and WMF, I frequently got asked how to give proper credit when using Creative Commons-licensed images in slideshows. I got the question again last week, and am working on slides right now, so here’s a quick guide.

The basics

First, a quick refresher. To comply with Creative Commons (CC) attribution requirements, you need to provide four things in a “reasonable” manner:

  1. the title of the work (if there is one);
  2. the author (might be an internet username);
  3. the source (where you got it); and
  4. the license (including version).

CC helpfully condenses those to “TASL“. An example:

“Larry Lessig giving #ccsummit2011 keynote” by David Kindler is licensed under CC BY 2.0

Creating this information has traditionally been a pain, but this one were generated with one click by the great new “copy credit as text” button in the CC search beta!

Once you’ve created an appropriate credit line, the question, then, is what is a “reasonable” way to put it into a slide deck? There are a few options.

The maximalist option

An obvious option is to put the credit information on every slide, like the lower right hand corner here:

From “‘Program and Engagement Coordination’ – A reflective process management to take movement conferences to the next level“, by Cornelius Kibelka, under CC BY 4.0.

This has some benefits:

  • Clearly complies with the license.
  • Regularly reminds the audience that the images are available and reusable.
  • If you reorganize the slides, the credit stays with the image.

Things that aren’t so great:

  • Distracts from your message.
  • Very difficult to read, so not very useful to the audience, or motivating for the author.

What Lessig does

To keep the focus on his content, Creative Commons founder Lessig puts all his attributions on a single slide at the end of each talk. (This is consistent with his famous “Lessig method” — large, bold images and very few words.) You can see an example just before the end of a talk he gave in 2013. Note that Lessig does not give an oral explanation of what is on the slide, or mention of the license, since they are shown during applause.

My own slides do something similar:

I give more detail by providing links, and note that all images are specifically CC BY-SA 3.0 unless otherwise noted.

So what’s good/bad about this approach? Good:

  • Doesn’t distract from your message as a speaker (which is the reason you’re speaking, after all!)
  • Complies with the license, since it is “reasonable” for the slide medium.

Bad:

  • Doesn’t give the authors much recognition.
  • Only weakly informs the audience that that the images are available and reusable (since it is at the end and nearly unreadable).
  • If you reorder your slides, or copy and paste into a different deck, you also have to remember to reorder/reuse your attribution slide.

Improving recognition and utility

Given those drawbacks, here are two things you can consider doing to improve on Lessig’s approach.

Fix utility with a clear link to downloadable information

Consider adding a slide at the end, before the full attribution slide, that provides a download link and mentions the license — something like “download slides, and get links and licenses for images, at lu.is/talks“. If you leave that slide up during Q&A, and the URL is short and memorable, the audience can easily find the licensing information later when it is useful to them.

Recognize authors with a thank-you slide

The small type and quick flash of a long attribution slide may be legally compliant, but it does not help give authors the recognition they often want. So consider adding a “thank you” slide with just the names of authors, and a prominent CC logo, without any titles and licensing information. It will make the authors happy, especially if any of them are in the audience!

React’s license: necessary and open?

I got multiple emails last week about React’s patent license, and this analysis made the rounds. So a few quick thoughts.

tl;dr: React’s patent license (1) isn’t a bad idea, because the BSD license is not explicit about granting patent rights; and (2) probably meets the requirements of the Open Source Definition.

react

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Public licenses and data: So what to do instead?

I just explained why open and copyleft licensing, which work fairly well in the software context, might not be legally workable, or practically a good idea, around data. So what to do instead? tl;dr: say no to licenses, say yes to norms.

"Day 43-Sharing" by A. David Holloway, under CC BY 2.0.
Day 43-Sharing” by A. David Holloway, under CC BY 2.0.

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Copyleft, attribution, and data: other considerations

Public licenses for databases don’t work well. Before going into solutions to that problem, though, I wanted to talk briefly about some things that are important to consider when thinking about solutions: real-world examples of the problems; a common, but bad, solution; and a discussion of the motivations behind public licenses.

2013-bullfrog-map-unavailable
Bullfrog map unavailable“, by Peter Desmets, under CC BY 3.0 unported

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Copyleft and data: databases as poor subject

tl;dr: Open licensing works when you strike a healthy balance between obligations and reuse. Data, and how it is used, is different from software in ways that change that balance, making reasonable compromises in software (like attribution) suddenly become insanely difficult barriers.
Continue reading “Copyleft and data: databases as poor subject”

Copyleft and data: database law as (poor) platform

tl;dr: Databases are a very poor fit for any licensing scheme, like copyleft, that (1) is intended to encourage use by the entire world but also (2) wants to place requirements on that use. This is because of broken legal systems and the way data is used. Projects considering copyleft, or even mere attribution, for data, should consider other approaches instead.

Continue reading “Copyleft and data: database law as (poor) platform”

Free as in … ? My LibrePlanet 2016 talk

Below is the talk I gave at LibrePlanet 2016. The tl;dr version:

  • Learning how political philosophy has evolved since the 1670s shows that the FSF’s four freedoms are good, but not sufficient.
  • In particular, the “capability approach” pioneered by Amartya Sen and Martha Nussbaum is applicable to software, and shows us how to think about improving the capability of people.
  • There are a bunch of ways that free software, as a movement, could refocus on liberating people, not code.

I did not talk about it in the talk (given the audience), but I think this approach is broadly applicable to every software developer who wants to make the world a better place (including usability-inclined developers, open web/standards folks, etc.), not just FSF members.

I was not able to use my speaker notes during the talk itself, so these may not match terribly well with what I actually said on Saturday – hopefully they’re a bit more coherent. Video will be posted here when I have it. [Update: video here.]

image from talk

Most of you will recognize this phrase as borrowed from the Wikimedia Foundation. Think on it for a few seconds, and how it differs from the Four Freedoms.

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I’d like to talk today about code freedom, and what it can learn from modern political philosophy.

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Last time I was at Libre Planet, I was talking with someone in a hallway, and I mentioned that Libre Office had crashed several times while I was on the plane, losing some data and making me redo some slides. He insisted that it was better to have code freedom, even when things crashed in a program that I could not fix without reading C++ comments in German. I pointed out, somewhat successfully, that software that was actually reliable freed me to work on my actual slides.

We were both talking about “freedom” but we clearly had different meanings for the word. This was obviously unsatisfying for both of us – out common language/vocabulary failed us.

This is sadly not a rare thing: probably many of us have had the same conversation with parents, friends, co-workers, etc.

So today I wanted to dig into “freedom” – what does it mean and what frameworks do we hang around it.

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So why do we need to talk about Freedom and what it means? Ultimately, freedom is confusing. When card-carrying FSF members use it, we mean a very specific thing – the four freedoms. When lots of other people use it, they mean… well, other things. We’ll get into it in more detail soon, but suffice to say that many people find Apple and Google freeing. And if that’s how they feel, then we’ve got a very big communication gap.

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I’m not a political philosopher anymore; to the extent I ever was one, it ended when I graduated from my polisci program and… immediately went to work at Ximian, here in Boston.

My goal here today is to show you that when political philosophers talk about freedom, they also have some of the same challenges we do, stemming from some of the same historical reasons. They’ve also gotten, in recent years, to some decent solutions – and we’ll discuss how those might apply to us.

Apologies if any of you are actually political philosophers: in trying to cram this into 30 minutes, we’re going to take some very, very serious shortcuts!

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Let’s start with a very brief introduction to political philosophy.

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Philosophers of all stripes tend to end up arguing about what is “good”; political philosophers, in particular, tend to argue about what is “just”. It turns out that this is a very slippery concept that has evolved over time. I’ll use it somewhat interchangeably with “freedom” in this talk, which is not accurate, but will do for our purposes.

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Ultimately, what makes a philosopher a political philosopher is that once they’ve figured out what justice might be, they then argue about what human systems are the best ways to get us to justice.

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In some sense, this is very much an engineering problem: given the state of the world we’ve got, what does a better world look like, and how do we get there? Unlike our engineering problems, of course, it deals with the messy aspects of human nature: we have no compilers, no test-driven-development, etc.

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So before Richard Stallman, who were the modern political philosophers?

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Your basic “intro to political philosophy” class can have a few starting points. You can do Plato, or you can do Hobbes (the philosopher, not the tiger), but today we’ll start with John Locke. He worked in the late 1600s.

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Locke is perhaps most famous in the US for having been gloriously plagiarized by Thomas Jefferson’s “life, liberty, and pursuit of happiness”. Before that, though, he argued that to understand what justice is, you have to look at what people are missing when they don’t have government. Borrowing from earlier British philosophers (mostly Hobbes), he said (in essence) that when people have no government, everyone steals from – and kills – everyone else. So what is justice? Well, it’s not stealing and killing!

This is not just a source for Jefferson to steal from; it is perhaps the first articulation of the idea that every human being (at least, every white man) is entitled to certain inalienable rights – what are often called the natural rights.

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This introduces the idea that individual freedom (to live, to have health, etc.) is a key part of justice.

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Locke was forward-thinking enough that he was exiled to the Netherlands at one point. But he was also a creature of his time, and concluded that monarchy could be part of a just system of government, as long as the people “consented” by, well, not immigrating.

This is in some sense pretty backwards, since in 1600s Europe, emigration isn’t exactly easy. But it is also pretty forward looking – his most immediate British predecessor, Hobbes, basically argued that Kings were great. So Locke is one of the first to argue that what the people want (another aspect of what we now think of as individual freedom) is important.

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It is important to point out that Locke’s approach is what we’d now call a negative approach to rights: the system (the state, in this case) is obligated to protect you, but it isn’t obliged to give you anything.

Coming from the late 1600s, this is not a crazy perspective – most governments don’t even do these things. For Locke to say “the King should not take your stuff” is pretty radical; to have said “and it should also give you health care” would have also made him the inventor of science fiction. And the landed aristocracy are typically fans!

(Also, apologies to my typographically-sensitive friends; kerning of italicized fonts in Libre Office is poor and I got lazy around here about manually fixing it.)

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But this is where Locke starts to fall down to modern ears: if you’re not one of the landed aristocracy; if you’ve got no stuff for the King to take, Locke isn’t doing much for you. And it turns out there are a whole lot of people in 1600s England without much stuff to take.
So let’s fast forward 150+ years.

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You all know who Marx is; probably many of you have even been called Marxists at one point or another!

Marx is complicated, and his historical legacy even more so. Let’s put most of that aside for today, and focus on one particular idea we’ve inherited from Marx.

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For our purposes, out of all of Marx, we can focus on the key insight that people other than the propertied class can have needs.(This is not really his insight; but he popularizes it.) I

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Having recognized that humans have needs, Marx then goes on to propose that, in a just society, the individual might not be the only one who has a responsibility to provide those needs – the state, at least when we reach a “higher phase” of economic and moral development, should also provide.

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This sounds pretty great on paper, but it is important to grok that Marx argues that his perfect system will happen only when we’ve reached such a high level of economic development that no one will need to work, so everyone will work only on what they love. In other words, he ignores the scarcity we face in the real world. He also ignores inequality – since the revolution will have washed away all starting differences. Obviously, taken to this extreme, this has led to a lot of bad outcomes in the world – which is what gives “marxism” its bad name.

But it is also important to realize that this is better than Locke (who isn’t particularly concerned with inequality), and in practice the idea (properly moderated!) has led to the modern social welfare state. So it is a useful tool in the modern philosophical toolkit.

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Fast forward again, another 100 years. Our scene moves down the street, to Harvard. Perhaps the two most important works of political philosophy of the 20th century are written and published within four years of each other, further up Mass Avenue from MIT.

John Rawls publishes his Theory of Justice in 1971; Robert Nozick follows up with his Anarchy, the State, and Utopia in 1974.

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Rawls and Nozick, and their most famous books, differ radically in what they think of as justice, and what systems they think lead to the greatest justice. (Nozick is the libertarian’s libertarian; Rawls more of a welfare-state type.) Their systems, and the differences between them, are out of our scope today (though both are fascinating!).

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However, both agree, in their ways, that any theory of a just world must grapple with the core fact that modern societies have a variety of different people, with different skills, interests, backgrounds, etc. (This shouldn’t be surprising, given that both were writing in the aftermath of the 60s, which had made so clear to many that our societies were pretty deeply unjust to a lot of people.)

This marks the beginning of the modern age of political philosophy: Locke didn’t care much about differences between people; Marx assumed it away. Nozick and Rawls can be said, effectively, to mark the point when political philosophy starts taking difference seriously.

But that was 40 years ago – what has happened since then?

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So that brings us to the 1990s, and also to 2016. (If you haven’t already figured it out, political philosophy tends to move pretty slowly.)

The new-ish hotness in political philosophy is something called capability theory. The first work is put forward by Amartya Sen, an Indian economist working with (among others) the United Nations on how to focus their development work. Martha Nussbaum then picked up the ball, putting in a great deal of work to systematize it.

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When Sen starts working on what became capability theory, he’s a development economist trying to help understand how to help improve the lives of his fellow Indian citizens. And he’s worried that a huge focus on GDP is not leading to very good outcomes. He turns to political theory, and it doesn’t help him: it is focused on very abstract systems. John Locke saying “life, liberty, property” and “sometimes monarchs are OK” doesn’t help him target the UN’s investment dollars.

So his question becomes: how do I create a theory of What is Just that actually helps guide decisions in the real world? Capability theory, in other words, is ultimately pragmatic.

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To put it another way, you can think of the capability approach as an attempt to figure out what effective freedom is: how do we take freedom out of textbooks and into something that really empowers people?

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One of the key flaws for Sen of existing theories was that they talked about giving people at worst, negative rights (protecting their rights to retain property they didn’t have) and at best, giving them resources (giving them things or training they couldn’t take advantage of). He found this unconvincing, because in his experience India’s constitution gave all citizens those formal rights, but often denied them those rights in practice, through poverty, gender discrimination, caste discrimination, etc.

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And so from this observation we have the name of the approach: it focuses on what, pragmatically, people need to be capable of acting freely.

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Some examples may be helpful here to explain what Sen and Nussbaum are getting at.

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For example, if all men and women have the same formal access to education, but women get fewer job callbacks after college than men with identical resumes, or men refuse to care for children and aging parents, then it seems unlikely that we can really claim to have a just society.

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Somalia, circa 1995-2000, was, on the face of it, a libertarian paradise: it gave you a lot of freedom to start businesses! No minimum wage, no EPA.

But it turns out you need more than “freedom from government interference” to run a business: you have to have a lot of other infrastructure as well. (Remember, here, Locke’s “negative” rights: government not stopping you, v. government supporting you.)

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These examples suggest that answering political philosopher question #1 (“what is justice?”) requires more than just measuring access to resources. What you want to know to understand whether a system is just, you have to measure whether all people have the opportunity to get to the important goals.

In other words, do they have the capability to act?

This is the core insight that the capabilities approach is grounded in: it is helpful, but not enough, to say “someone has the natural rights” (Locke) or “some time in the future everyone will have the same opportunity” (Marx).

(Is any of this starting to ring a bell?)

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Capability approach is, again, very pragmatic, and comes from a background of trying to allocate scarce development resources in the real world, rather than a philosopher’s cozy university office. So if you’re trying to answer the political philosopher’s question (“what system”), you need to pick and choose a few capabilities to focus on, and figure out what system will support those capabilities.

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Again, an example might be helpful here to show how picking the right things to focus on can be important when you’re aiming to build a system that supports human capability.

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If you focus on only one dimension, you’re going to get things confused. When Sen was beginning his work, the development community tended to focus exclusively on GDP. Comparing the Phillippines and South Africa by this number would have told you to focus your efforts on the Philippines.

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But  one of the most basic requirements to effective freedom – to supporting people’s capability to act – is being alive! When we look at it through that lens, we pretty quickly see that South Africa is worth more energy. It’s critical to look through that broader lens to figure out whether your work is actually building human freedom.

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This is, perhaps, the most contentious area of capability theory – it’s where writing is being done across a variety of disciplines, including economics, political philosophy, sociology, and development. This writing has split into two main areas: the pragmatists, who just want to figure out useful tools that help them improve the world, and the theorists, who want to ground the theory in philosophy (sometimes as far back as Aristotle).

This is a great place to raise Martha Nussbaum again: she’s done the most to bring theoretical rigor to the capability approach. (Some people call Sen’s work the “capability approach”, to show that it is just a way of thinking about the problem; and Nussbaum’s work “capability theory”, to show that it is a more rigorous approach.)

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I have bad news: there is no one way of doing this. Some approaches can include:

  • Local nuance: What is valued and important in one culture may not be in another; or different obstacles may exist in different places and times. Nussbaum’s work particularly focuses on this, interviewing people both to find criteria that are particularly relevant to them, but also to attempt to identify global values.
  • Democracy: Some of Sen’s early research showed that democracies were better at getting people food than non-democracies of similar levels of economic development, leading to avoidance of famines. So “what people prioritize based on their votes” is a legitimate way to understand the right capabilities to focus on.
  • Data: you’ll almost never see a table like the one I just showed you in most political philosophy! The capability approach embraces the use of data to supplement our intuitions and research.
  • Old-fashioned philosophizing: it can be perfectly appropriate to sit down, as Richard did, and noodle over our problems. I tend to think that this is particularly important when we’re identifying future capabilities – which is of course our focus here.

Each of these can be seen as overlapping ways of identifying the best issues to identify – all of them will be useful and valid in different domains.

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Shared theme of that last slide? Thinking primarily about people. Things are always a means to an end in the capability approach – you might still want to measure them as an important stepping stone to helping people (like GDP!) but they’re never why you do something.

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There is no one right way to pick which capabilities to focus on, which drives lots of philosophers mad. We’ll get into this in more detail soon – when I talk about applying this to software.

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Probably the bottom line: if you want to know how to get to a more just system, you want to ask about the capabilitiesof the humans who are participating in that system. Freedom is likely to be one of the top things people want – but it’s a means, not the end.

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So now we’ve come to the end of the philosophy lecture. What does this mean for those of us who care about software?

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So, again, what do political philosophers care about?

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The FSF’s four freedoms try to do the right thing and help build a more just world.

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If you don’t have some combination of time, money, or programming skills, it isn’t entirely clear the four freedoms do a lot for you.free-as-in-what- - 48

The four freedoms are negative rights: things no one can take away from you. And that has been terrific for our elites: Locke’s landed aristocracy is our Software as a Service provider, glad the King can’t take away his right to run MySQL. But maybe not so much for most human beings.
free-as-in-what- - 49This brings us to our second question – what system?

Inspired by the capability approach, what I would argue that we need is a focus on effective freedom. And that will need not just a change to our focus, but to our systems as well – we need to be pragmatic and inclusive.

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So let me offer four suggestions for free software inspired by the capability approach.

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We need to start by having empathy for all our users, since our goal should be software that liberates all people.

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Like the bureaucrat who increases GDP while his people die young, if we write billions of lines of code, but people are not empowered, we’ve failed. Empathy for others will help us remember that.

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Sen, Nussbaum, and the capability approach also remind us that to effectively provide freedom to people we need to draw opinions and information from the broadest possible number of people. That can simply take the form of going and listening regularly to why your friends like the proprietary software they use, or ideally listening to people who aren’t like you about why they don’t use free software. Or it can take the form of surveys or even data-driven research. But it must start with listening to others. Scratching our own itch is not enough if we want to claim we’re providing freedom.

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Or to put it another way: our communities need to be as empowering as our licenses. There are lots of great talks this weekend on how to do that – you should go to them, and we should treat that as philosophically as important as our licenses.

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I think it is important to point out that I think the FSF is doing a lot of great work in this area – this is the most diversity I’ve seen at Libre Planet, and the new priorities list covers a lot of great ground here.

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But it is also a bad sign that at the new “Open Source and Feelings” conference, which is specifically aimed at building a more diverse FOSS movement, they chose to use the apolitical “open” rather than “free”. That suggests the FSF and free software more generally still have a lot of work to do to shed their reputation as being dogmatic and unwelcoming.

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Which brings me to #2: just as we have to listen to others, we have to be self-critical about our own shortcomings, in order to grapple with the broad range of interests those users might have.

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At the begining of this talk, I talked about my last visit to Libre Planet, and how hard it was to have a conversation about the disempowerment I felt when Libre Office crashed. The assumption of the very well-intentioned young man I was talking to was that of course I was more free when I had access to code. And in a very real way, that wasn’t actually true – proprietary software that didn’t crash was actually more empowering to me than libre software that did crash. And this isn’t just about crashing/not-crashing.

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Ed Snowden reminded us this morning that Android is freely-licensed, but that doesn’t mean it gives them the capability to live a secure life.

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Again, here, FSF has always done some of the right thing! You all recognize this quote: it’s from freedom zero. We often take pride in this, and we should!

But we also often say “we care about users” but only test what the license is. I’ve never seen someone say “this is not free, because it is impossible to use” – it is too easy, and too frequent, to say “well, the license says you can run the program as you wish, so it passes freedom zero”. We should treat that as a failure to be humble about.

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Humility means admitting our current. unidimensional systems aren’t great at empowering people. The sooner we admit that freedom is complex, and goes beyond licensing, the quicker we can build better systems.

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The third theme of advice I’d give is to think about impact. Again, this stems from the fundamental pragmatism of the capability approach. A philosophy that is internally consistent, but doesn’t make a difference for people, is not a useful philosophy. We need to take that message to heart.

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Mako Hill’s quantitative research has shown us that libre code doesn’t necessarily mean quality code, or sucessful projects. If we want to impact users, we have to understand why our core development tools are no longer best-in-class, and fix them, or develop new models to replace them.

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We built CVS, SVN, and git, and we used those tools to build some of the most widely-used pieces of software on earth. But it took the ease of use of github to make this accessible to millions of developers.

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Netsplit.de is a search engine for IRC services. Even if both of these numbers are off by a factor of two (say, because of private networks missing from the IRC count, and if Slack is inflating user counts), it still suggests Slack will have more users than IRC this year. We need to think about why that is, and why free software like IRC hasn’t had the impact we’d like it to.

If we’re serious about spreading freedom, this sort of “post-mortem” of our successes and failures is not optional – it is a mandatory part of our commitment to freedom.

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I’ve mentioned that democracy is one way of choosing what capabilities to focus on, and is typically presumed in serious analyses of the capability approach – the mix of human empowerment and (in Sen’s analysis) better pragmatic impact make it a no-brainer.

A free software focused on impact could make free licensing a similar no-brainer in the software world.

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Dan Gillmor told us this morning that “I came for the technical excellence and stayed for the freedom”: as both he and Edward Snowden said this morning, we have to have broaden our definition of technical excellence to include usability and pragmatic empowerment. When we do that, our system – the underlying technology of freedom – can lead to real change.

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This is the last, and hardest, takeaway I’ll have for the day.

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We’ve learned from the capability approach that freedom is nuanced, complex, and human-focused. The four freedoms, while are brief, straightforward, and easy to apply, but those may not be virtues if our goal is to increase user freedom.

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As I’ve said a few times, the four freedoms are like telling you the king can’t take your property: it’s not a bad thing, but it also isn’t very helpful if you don’t have any property.

We need to re-interpret “run the program as you wish” in a more positive light, expanding our definitions to speak to the concerns about usability and security that users have.

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The capability approach provides us with questions – where do we focus? – but not answers. So it suggests we need to go past licensing, but doesn’t say where those other areas of focus might be. Here are some suggestions for what directions we might evolve free software in.

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Learning from Martha Nussbaum and usability researchers, we could work with the next generation of software users to understand what they want, need, and deserve from effective software freedom.

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We could learn from other organizations, like UNICEF, who have built design and development principles. The graphic here is from UNICEF’s design principles, where they talk about how they will build software that improves freedom for their audience.

It includes talk about source code – as part of a coherent whole of ten principles, not an end in and of itself.

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Many parts of our community (including FSF!) have adopted codes of conduct or similar policies. We could draw on the consistent themes in these documents to identify key values that should take their place alongside the four freedoms.

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Finally, we can vote with our code: we should be contributing where we feel we can have the most impact on user freedom, not just code freedom. That is a way of giving our impact: we can give our time only to projects that empower all users. In my ideal world, you come away determined to focus on projects that empower all people, not just programmers.

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Ultimately, this is my vision, and why I remain involved in free software – I want to see people who are liberated. I hope after this talk you all understand why, and are motivated to help it happen.
Thanks for listening.

Further reading:

Image sources and licenses (deck itself is CC BY-SA 4.0):

 

 

The All Writs Act on Wikipedia v. legal academic reach

Legal friends! The world needs you. Here’s the graph of readership of All Writs Act on Wikipedia:

Pageviews Analysis-All Writs ActThat’s 45,035 reads yesterday (by humans, not bots).((Big thanks to the tech team for figuring out how to differentiate – not something we could do until fairly recently, at least for public stats!)) That would put it 5th on SSRN’s all-time legal download list, right between William Landes and Cass Sunstein. Not bad company! Or in other words: anything you fix in this article in the next day or two is likely to be the most-read thing you ever write.

The article has been edited 39 times since the Apple letter was published. So it is a lot better than two days ago. But it could still use a lot of love – history, applicability outside of the Apple situation, etc. Contribute!

Since lawyers are particularly concerned about citation, it is worth mentioning that the editing experience especially when adding citations has become vastly better in the past year – in most cases for articles on SSRN, simply dropping the link into our citation editor will get you a fully-fleshed out and formatted citation (with thanks to our friends at Zotero!)