Law in the Internet Society

From Recognition to Reaction

-- By SebastianBresser - 02 Nov 2017


Beginning with computers on some people’s desks a few decades ago, today, connected devices are in almost everyone’s hand. Soon, as has already begun, connected devices will leave their owner’s hands and spread into, or rather: become their homes, cars, glasses and almost any other object imaginable. The drastic changes in private, professional and political life and the great economic success of so-called "technology" companies have made almost everyone aware that the combination of personal computers and internet is affecting and changing life incredibly fast, thoroughly and irreversibly.

Nonetheless, while some people try to understand the technical specifications of their devices by comparing processing power, memory or screen resolution, the clear majority of users remains illiterate to how the hardware is put to use by built-in or installed software. The average user’s assessment usually ends at superficially comparing operating systems and then drifts into a mixture of wonder and awe vis--vis the seemingly magical capabilities of the device. This ignorance prevents understanding the link between hard- and software. It does not, however, prevent knowing that there is such link and that, rather than magic, software is the result of a developer’s thinking expressed in some programming language. Consequently, the idea that software can be harmful or malicious is little surprising to most people.

Obvious malware like computer viruses and targeted attacks to computer systems are probably most commonly associated with such misuse. Less obvious malware, however, like tracking-tools or curated content is also known, discussed and criticized. Cases that spring to mind are, among many others, the criticism of Cambridge Analytica, a company using data to analyze and affect election behavior, or planned social scoring in China. What might be scary but not surprising to most Facebook, Google or Twitter (software) users is that they are, in fact, products sold to advertisers, people running for president or governments (sometimes, without the company’s knowledge). Overall, the fact that with software the nervous-system of connected devices, soon many more than today, can be become a great tool to subtly affect, influence and steer human behavior is widely understood and, understandably, criticized harshly.

Proprietary vs. Open Source Software

What is arguably less commonly understood, however, are the two significantly different approaches to software development and how they either restrain or unbridle the development of malicious software. On one hand, distributed open source software allows able users to access and, more importantly, alter how the physiology of the web is constructed – at least for as long as software is developed by humans and thus, can be understood. On the other hand, proprietary software allows access only for the few people involved in its development and, inevitably, gives them absolute power over the software’s users (leaving users to hope for a responsible self-regulation). By design, proprietary software uses its operators and open source software enables its users. In addition, proprietary software, naturally, has a proprietor whereas open source software distributes its author- and ownership disabling any one person or entity to steer its direction. While this seems almost too trivial to be stated it is also open source software’s most important distinction from proprietary software. If no person or entity can make a profit from making users a product or by affecting their behavior, such mechanism will not become part of the software. In fact, since the beneficiaries of open source software are also its users there is no reason to believe that open source software will ever be developed against its users.

Hence, the question of whether software will become a means to an end (human despotism) or a freedom-enabling means in itself, is closely linked to the question of which type of software will prevail. Independent of whether freedom is truly achievable or solely worth pursuing, proprietary software is self-evidently not the tool of choice to get there. With this relatively obvious conclusion that requires little understanding of how software works, why is (proprietary) software still “eating the world”?

Why People use Proprietary Software

As outlined above, the problem is visible, it is recognized by enough people and, for as long as software is not developed by software, an appropriate reaction is feasible. It is also almost undisputed that open source software is superior to proprietary software (Open-source-Linux runs on almost every supercomputer and server and its kernel is base to the most popular (yet proprietary) mobile operating system). What is more, yet contrary to what data-collecting companies suggest, data collection and exploitation (yielding valuable information from monitoring traffic to predicting the spread of infectious diseases) need not be done by a single entity but can be done transparently and collectively. Block chain is one of the technologies that have rendered centralized databases redundant. Despite all this, the clear majority of people uses proprietary software in their personal and professional lives.

At first sight, these statistics are incomprehensibly counterintuitive. At second sight, it is little surprising to see a malicious and even dangerous product prevail. In fact, it is not uncommon for flawed products to excel even if superior products are available. The driving forces for counterintuitive, short-sighted consumer (or voting) behavior are innumerable and, very often, as evident as underestimated (the bystander-effect is one example, the network-effect another).

I will focus on another example: Marketing. Marketing budgets (not: revenue) of large proprietary software companies dwarf those of open source software initiatives. The 2015 ad spent of Apple alone (before stopping disclosure) had risen to a record amount of $1.8 billion. Apple, more than any other software company before, put hard- and software design (as in aesthetics) at the very core of its product development and, like many other companies, cares more about communicating quality than about providing quality. Open source proponents, conversely, seem to hope that the quality (functional, not aesthetic) of the software advertises itself. Independent of whether this hope is the result of lacking understanding or lacking financial resources: the quality did and will not advertise itself. Hence, if open source software is to become the software of choice, it will also need a serious marketing budget.

Because I'm a reader who knows something about this subject, this seems to me like a beginning basic introduction, where a reader less informed might judge differently.

Whether intended for a general reader or a specialist, however, the essay would certainly be improved by discussing the difference between copyleft licensing, where the legal conditions on use of the work are designed to protect users' rights, and "permissive" licensing, in which the developers of new programs or versions of programs have a right to render their own versions proprietary, thus ousting users of their rights. A discussion of the difference would be informative to general readers, and would help more expert readers gain confidence in the analysis.

Similarly, I think you would improve the next draft by explaining more fully why the "serious marketing budget" (which, for example, Google and device manufacturers certainly have for Android) doesn't really improve peoples' understanding of their rights in the software they use, or how those rights should be protected.


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r3 - 05 Dec 2017 - 19:51:48 - EbenMoglen
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