Intellectual Property Was:Re: Bubbleboy worm: BEWARE

Warwick Fry wfry10 at
Sun Nov 14 22:02:01 MST 1999

At 01:21 PM 11/14/99 -0500, you wrote:
>I think there are two main reasons Microsoft tends to make their
>applications so vulnerable.
>The first is windows. Contrary to popular belief, Windows 95/98 is a further
>development of windows 386, 3.0 and 3.1, a 32-bit shell built on top of and
>partly replacing the almost 20-year-old DOS operating system, which in turn
>was copied from earlier Digital Research os's from the late 1970s. In other
>words, Windows is built on the foundation of the very best technology that
>was developed during the first generation of hobbyist personal computers,
>and one of the things it means is that, fundamentally, there is no way to
>provide security. Becuase of the DOS legacy ANY program can act as if it
>owns the machine and do anything it wants with it.


    Thanks for that explication of the mechanics of Microsoft's technical
manipulation of the market.

    I'm putting up some extracts from an article/paper I have written,
which I promised to Louis a week or so ago.

It will be published in an upcoming issue of Arena magazine so I am asking
list subscribers to recognise an embargo until after January next year if
they think there is anything in it worth using. I thought it related some
of the technological issues raised in this thread to wider ideological
issues. It is not meant to be a manifesto - it was drafted after all for
one of the few left-of-centre 'mainstream' mags surviving in Australia, but
I think at least one of my ideas - the possibility of a strategy to counter
the appropriation of the genetic 'material' of native people (which I think
has also been raised on this list)- deserves some consideration. I am open
to constructive criticism. I'm also particularly interested in comment on
the article by John Frow in the March '99 issue of Australian Book Review.
I could probably stand to be corrected on some of my perspectives on the
early 'net' culture  - I'm sure Louis would know far more about that than I


" 'The Digital Queen's Council - Genetic Commons vs Corporate State' Or:
'The Human Rights of Internet Busking "

It is over twenty years now, since the US legal industry found itself in a
quandary when computer 'programs' were first being burnt onto chips, and
written programs began to emulate  pieces of computer hardware. The legal
profession suddenly learned (and is still learning) that while a computer
program is in some respects like a piece of writing, some programs also
behave like a piece of machinery.


Frow links intellectual property to the constitution of the public domain,
and draws out the conceptual tensions that exist between notions of
'property' and 'the public' which are being exacerbated by neoliberal
doctrine.   In doing so he develops an earlier analysis of intellectual
property, digital technology, copyright and patent law, made by John Perry
Barlow back in the early 90s. Barlow similarly argued the fallacy of an
'economy of knowledge' predicated on scarcity. In his short, rhetorically
extravagant, but nevertheless seminal article,  Selling Wine Without
Bottles: The Economy of Mind on the Global Net  (circulated widely on the
net, and also published in "Wired" magazine) Barlow ascribes to digital
technology a rupture between existing law, and intellectual property. As
the expression and dissemination of ideas become decreasingly tied to
physical objects (given the unique ability of digital technology to make
virtually unlimited numbers of identical, undegraded copies) the existing
legal basis of (intellectual) property ownership has become less potent.

Frow's vision is more critical in its pessimism than Barlow's sometimes
irritating lack of it. The pessimism is justified and serves as a valid
critique of neoliberal ideology. But it should not obscure the
possibilities, and the capacity and ability to generate new areas of
'public domain' even as older and more familiar ones are eroded or
subverted. Barlow's more optimistic attitude probably stems from his
association with the 'digital culture' which has proven itself quick to
respond, adapt and defend itself against some of the pressures of
'privatisation' and corporatisation.

In the early internet culture, the culture of the programmers and academics
who actually created the net,  the response to the commercialisation of
proprietary software (begun by Bill Gates) was the 'shareware' phenomenon.
Programmers loaded free software modules to the net and relied on an
'honour system' of voluntary payment. Oddly enough the system worked, and
still works (It is rumored that Stephen Outtrim, the youthful Australian
"Sausage Software" magnate made his start this way).  Programmers would
display their work in the public area of a newsgroup or ftp archive for
assessment, approval, suggested improvements, and voluntary contributions
of money (usually about $10)  -  much as buskers do on city streets.

Freeware and shareware went hand in hand with the GNU Public License, (or
GPL).  This legal concept was a novel development of the early 1980s
specifically created for and by programmers and 'hackers' (in the benign
sense of the word) to develop their programs beyond the constraints of
proprietary software. The Linux Pocketbook
( ) describes the GNU license as:

" …  designed to protect and promote the freedom of the user. The only
restrictions it contains are those necessary to ensure that future users of
the software will have the same freedom available to them.  The license
states that it is acceptable to distribute or modify the source code - and
even sell it  -  but that the source code must be distributed with the
application, and any derived works must also be placed under the GPL."

In short, GPL is a kind of legal ju-jitsu, which enables one to use patent
and copyright law preemptively to keep intellectual property in the public
domain. It differs from Public Domain copyright or patent in that a Public
Domain product can be appropriated to a proprietary product through very
slight modification  -  as happened with the contents of the genetic seed
bank which was originally established to preserve the residual biogenetic
diversity of the Third World.

        "The simplest way to make a program free is to put it in the public
domain, uncopyrighted.  But this permits proprietary modified versions,
which deny others the freedom to redistribute and modify; such versions
undermine the goal of giving freedom to *all* users.  To prevent this,
"copyleft" uses copyrights in a novel manner.  Typically, copyrights take
away freedoms; copyleft preserves them.  It is a legal instrument that
requires those who pass on a program to include the rights to use, modify,
and redistribute the code; the code and the freedoms become legally
inseparable."   (GNU's Bulletin Free Software Foundation Inc. Boston
January 1996. ).

Note too that it is "designed to protect and promote the freedom of the
user". [my italics]. This design subverts the manipulation of the concept
of "authorship", by which (as suggested by Frow) the corporate world
appropriates ownership and control of intellectual property and assets.

If the concept sounds romantic and utopian bear in mind that one of the
main end-products of the Freeware option seems to be poised to challenge
the Microsoft software hegemony. In fact it is already putting some dents
in it. This is the Linux operating system, a free operating system with
open source code which runs the majority of the ISP web servers in the
world. It has now developed to become sufficiently user-friendly and
application-rich to realistically challenge Windows as both a business and
as a home computer operating system. Several large computer manufacturers
(Sun, and Packard, and  after a recent legal  challenge from a dissatisfied
Microsoft user, Toshiba) are beginning to sell their computers bundled with
Linux as the operating system of choice. Netscape has recently made its
source code available, in tacit recognition of the Linux success story and
the fact that the best software development takes place in an environment
of voluntaristic intellectual interest and collaboration, outside the
environment of a stable of corporate coders.

It constitutes a kind of ideological victory over the model of privatised
R&D controlled for corporate gain, by an alternative model, of communally
shared development of an 'intellectual'  resource as a public asset. And
the consensus opinion is that most of the best original software
applications have been created with this model!

More importantly though, it proves the existence of an effective legal
instrument which can resist the erosion of the public domain by neoliberal
ideology. In practical terms it affords a way out of some of the more
chilling scenarios biotechnology offers. Something like the GNU Public
License for example would seem a 'rational' (economic, legal, and even
moral) way to keep the Human Genome Project 'human'. Discussions of the
Human Genome Project have raised the possibility that the uniqueness of
aboriginal genetic material might mean that aborigines would need to patent
their genetic makeup to protect themselves from the same kind of
exploitation, already experienced by the Third World in its agricultural
biodiversity. Something like this has already happened in Iceland, with the
government being paid for the patent rights by a medical R&D company. (New
Scientist, 5 December 1998).

The idea of a private corporation taking out a 'patent' on aboriginal
genetic 'material' even through the mediation of a government, gives a
rather sickening twist to the notion of aboriginal 'difference', and to my
mind would be the ultimate indignity. Far kinder to us all if as many of us
as possible 'patented' our unique genetic characteristics under GNU Public

This would constitute a bastion of dignity against privatised corporate
privilege in the same way that another legendary product of the digital
culture does for the 'privacy' of the public.  That is Phil Zimmerman's
freeware public encryption program Pretty Good Privacy, and his mass
distribution of it, for free on the internet (and printed as an algorithm
on T-shirts, to be worn though Customs, when the US government tried to ban
its international distribution). This free encryption program effectively
broke the US government monopoly on encryption - a monopoly which gave the
US government (as holders of the encryption keys) a unique capability for
surveillance of its own citizens  - and indeed, the citizens of other
nations, given the dominance of US service providers protocols and
standards on the global net. The availability and capability of PGP was one
of the factors which led to the defeat of President Clinton's "Clipper
Chip" legislation.
The availability and adoption of PGP constituted both a mass protest, and a
practical form of self defense for the public right to privacy. Even though
most users did not want or need encryption, those who did (a human rights
activist in Guatemala is one concrete  example) could in effect, 'lose
themselves in the crowd'  when others adopted PGP as a gesture of
solidarity . We might want to start to think about doing something similar
with our collective genetic code.

Warwick Fry (wfry10 at
School of Humanities, Media and Cultural Studies
Southern Cross University
P.O. Box 157 Lismore NSW 2480 Australia
Ph: 61 2 66875994 (h)

"I just logged on to check my E-mail, and then it was Thursday."

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