Starting from Scratch

This week in CyberOne was about self-governance and code. My father’s lecture yesterday was very strong. We began with the founding fathers, Thomas Jefferson in particular. At the founding of our country, Jefferson advocated against the idea of intellectual property:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody…(letter to Isaac McPherson, 1813 as cited in Kock & Peden, 1972).

We spent a few minutes considering this perspective and how it has been in large part erased by the seemingly inexorable progression of our copyright law toward locking up intellectual property in the hands of the rights holders for an indefinite amount of time. What might have once been seen as a healthy public domain is now branded as “theft” and “piracy” by those who have used their corporate power to extend their exclusive rights to forever minus one day.

But the main point of the Jefferson example was not advocacy for the public domain, but to focus us on the insight clarified so well by his words. Ideas are a special kind of thing: I can give my idea to you without losing it myself. Contrast this with, say, a sandwich. If I give you my sandwich, I don’t have it any more. Fast forward to 1995, when John Perry Barlow wrote his prescient and very optimistic article “The Economy of Ideas”. Now not only could one give away an idea without losing it, one could do it easily and at no cost because the idea could be expressed digitally, encoded in 0s and 1s and sent out over a network. By 1998 the college students of the world were happily using Napster to give away their music to any stranger who wanted it and the owners of the rights were helpless to stop it. The wine was out of the bottle and there seemed to be no way to put it back in.

The owners of the rights had two options in front of them: using the law (created to favor them by the strong arm of their money) and the strong arm of the state to bring people into line, or trying to implement some form of self-governance through technological means. If code could be used to allow open and free trade of ideas, perhaps code could be used to lock it back up. We are now in the midst of this battle. Property owners create ever more complex ways of locking up their data and hackers find ways to get around the the protections. Judging by the ease with which people can still gain access to copyrighted materials, neither the traditional legal methods nor the technological methods being employed by the copyright owners are working terribly well. The law is perhaps running a distant second to the technological methods.

In a (cyber-)world in which the coercive powers of the state are largely absent, we are left with the responsibility to govern ourselves. Governance in cyberspace is accomplished by code. Those who write the code, write the laws. So today we turned our attention to learning to write code. We are using a creation coming out of the MIT Media Lab called Scratch. Scratch is a graphical programming language in which you can drag and drop the components of your program, fitting them together like puzzle pieces. It has several huge advantages as a learning language. First, it prevents the most common mistakes by giving clear virtual cues in the shapes of the puzzle pieces. If two pieces of code cannot go together, they cannot fit together. In effect, Scratch enforces laws against type and syntax errors. Second, the language builds in many exciting primitive statements, making it easy to make interesting, engaging programs.

Unfortunately, my presentation of Scratch was not as smooth as I hoped. But the magnetism of Scratch came through and many students are already deep into writing games. Watch the wiki to see some of their creations! Fortunately, it gave an opportunity for some very interesting and open class discussion. Scratch has not yet been publicly released, though it will be released both freely and open-source, probably in February. We were granted permission to use it for this class but not to distribute the software freely. My father suggested that this might be a problem. How can we use a closed software when we’re basing our course on a principle of openness? For the first time, the class broke out of lecture mode and into discussion. Two main ideas were advanced.

First, one student eloquently spoke for his right not to adopt our causes just because he is taking our class. (See this seconding by a fellow student here). He was right to do so. We, as instructors, reserve the right to express our own vision and to use our power as instructors to make arguments in favor of our view. But we don’t expect that our students will adopt our views and we certainly don’t expect that they should be assumed to have done so just by virtue of having enrolled in the class. Our class is strengthened by a diversity of points of view. We expect engagement, participation, and independent thought.

Second, several students advocated for a more flexible view of openness. Openness need not begin before the creator is ready to release a creation. Openness need not be absolute. Openness need not result in the destruction of the concept of authorship. One student stood for the absolute version of openness. For me, I’m still waiting for a more practical answer. How can we incorporate openness into a functioning economy in such a way that people can thrive both in open for-profit enterprises and non-market enterprises.

This long post has been my way of sorting out this week. I wasn’t particularly happy with my own teaching today, but I am happy with where we are going. Legal thinkers writing code. Self-governance will emerge.

— Rebecca Nesson


  1. Gene Koo

    September 20, 2006 @ 11:05 am


    I”m curious, Becca, where we “should” put discussion of the substance of the course, because I would love the kinds of questions that you cite in this writeup to be explored more fully (if, in my rose-tinted world, I would hope to see). So for now I’ll just put my comments here.

    Regarding the second law student’s point, I think it’s true in most situations that there are definite costs associated with openness, and that those costs may be far too high to bear in the early stages of a project. Consider even this class — how “open” is it, and when did it become so?

    I don’t see “openness” as an inherent value but merely one way of getting to a goal that may or may not be appropriate to every situation. Furthermore, openness itself has many qualities, and there are better and worse ways to implement it. Going back to the origins of democracy in America we can see debate about openness and a certain distrust of “mob rule.” From my POV, California’s experiment with “open governance” is disasterous. I don’t think the failure of one particular mechanism condemns the entire concept — instead I bring up that example to point out that openness is a design choice that needs to be sensitive to the design goals and overall context. Just as a final example, oftentimes it takes more effort and control by a strong facilitator to run a meeting that is democratic in nature rather than simply running a meeting autocratically. (Clarification: make that a GOOD and PRODUCTIVE meeting.)

  2. Ryan Slattery

    September 20, 2006 @ 5:31 pm


    I am on the fence with this theory of openness. I had Napster when it was free, and I use Limewire currently, to download music and movies in clear infringement of the copyright holders existing rights. I use any and all means to find information I need through the free exchange of the Internet, only whipping out my credit card in last acts of desperation, and begrudgingly at that.

    I am stuck pondering the meaning of all of this. In fact, I find myself to be a bit of a hypocrite. I was an actor when I was a kid, and every time something airs, I get a residual check in the mail, even years after filming a project. With the emergence of new technologies (and the tenacity of people like me who are used to not paying for entertainment obtained online), those residual payments are (in theory, at least) threatened. As someone who wishes to practice entertainment law someday, do I not have an obligation to protect the intellectual property of the client from people who would threaten its sustainability? In entertainment, the very image or likeness of the entertainer is property, and can the actual ramifications of “openness” as defined by the completely free exchange of such images in perpetuity without consideration really be imagined? I often think of the recording and film industry leaders marching in front of Congress tantamount to bafoonery, when one thinks of the billions they rake into their coffers, but then I ponder, does the industry cease to exist without the RIAA and MPAA, or Lars from Metallica, testifying and lobbying?

    I read today on The Smoking Gun about a man who was running a “Draft Oprah for President” campaign (seen here: I mean, c’mon, let’s all take a moment to laugh at that. But, apparently Oprah and her Harpo Productions group didn’t find time to laugh before putting together a brilliantly worded cease and desist order for this man who was using the name “Oprah” in his participation (apparently he’s serious) in the political process. This cannot be what the Framers had in mind.

    So, I ponder on, as I am a person who both benefits from the protections of intellectual property, and cuts it at its foundation by skirting copyright law. Perhaps, it is so easy to find myself in this situation without pulling my hair over it because of the ease of access to this “information.” We have become detached from the reality of what we are doing because it comes so easy to us. Meaning, we do not think of downloading an mp3 from our home computer as we think of stuffing a CD in our jacket at a record store; nor, do we think of ripping a film from the comfort of our home as we think of sneaking into a theater through the back door. Yet, before the emergence of this technology, the method of obtaining the same result would and could only have been the latter of the scenarios. By that measure, how can we justify either? Maybe some would say it should have been free in the first place. Perhaps some would say that it is different because of infrastructure; it does not exist in bits and bytes the same way it exists in a building, store, theater, or real packaged product. But, by that justification, are we actually saying that it is merely the vinyl of a record or the projector in a theater that measures the worth of the product we get? How do we value performance if it begins and ends in the public domain?

    I don’t really know the answers to these questions – hey, I’m just an undergrad. I guess all I really want are my checks to keep coming in and my iPod to stay full of music… 😉

  3. Ansible

    September 21, 2006 @ 12:11 pm


    Ryan’s question of “How do we value performance if it begins and ends in the public domain?” and Gene’s ideas about openness not being an inherent value get to the bottom of some of the deeper issues of this course and of the debate about open access in general. There are two points I’d like to make, along those lines:

    1) A part of the premise of this course is that if your message/product is strong enough, your success will be measured in the number of people it reaches (the viral aspect of net distribution). This is especially true in the case of knowledge because, as prof. Nesson says, knowledge seeks to be free and it is at its peak value when it is open. However, in other cases, such as and, the most popular videos are not necessarily the ones with a powerful message. Sometimes, a few of the best-produced pieces reach those tops, so the participatory ranking is flexible to a certain extent. To me, that is an indication of our human nature — after all, simply because we are in cyberspace doesn’t mean that we are different people. We are still people, and are still the same critical mass (more of less) that has popularized day-time drama, soap operas, etc.

    2) One of the challenges of the future is how to mesh open-access with for-profit. There are examples of a few that have successfully done just that. A great example I have discovered during my years at Harvard is Computer Science Professor Margo Seltzer ( ) and CTO of Sleepycat Software, the company that brought us Berkeley DB. Ryan, she would be great to hear speak about her experience. My personal observation is that in her case and in the few other instances where open source was able to pass into for-profit, the underlying answer was a creative approach to business models and an in-depth acquaintance with the community of interest gathering around the product. Like many cutting edge things, blending open access and successful business is a matter of innovation and creativity. What fun would it be if there was a pre-defined way to reap the open source benefits? 😉

    I too subscribe to having my ipod full of music, but I think I have become less reluctant to typing in my cc after I graduated. If I like an artist’s music, I usually tend to get the actual CD in order to show support for their work. I have also donated a couple of bucks here and there for open access stuff and I know I’m not the only one 🙂


  4. Gene Koo

    September 22, 2006 @ 4:38 pm


    Ryan writes: “Perhaps, it is so easy to find myself in this situation without pulling my hair over it because of the ease of access to this “information.” We have become detached from the reality of what we are doing because it comes so easy to us.”

    I think there’s a few ways you can approach the topic of “property,” and one way is to take a short mind-trip and imagine what would happen if in “real life” one were unable to build fences. You put a fence down on the ground and a few hours later it has moved or disappeared. In fact, imagine you don’t even have the ability to measure distances. Would there still be a concept of “real property”?

    I think the answer would probably still be Yes, but that concept of property would be vastly different than our current one. In the context of this class, think about what it means to be using a space like Second Life, with its 3D metaphor, versus a message board (like this one). How does the “reality” (in that case, the technology) of the space affect what you can do in that space, and essentially what the idea of property is? In Second Life, you actually CAN own pieces of land; in most message spaces, you can pretty much “own” a discussion thread (though few people use that language).

    I ask these questions to bring into awareness the fact that law is in relationship to “facts on the ground.” Law is obviously more than its material underpinnings, or else we would hardly need human law (“natural law” such as gravity or biology would be sufficient), yet law also often presupposes material facts, and when those facts change, law must evolve too. We are at an opportune moment now with respect to IP to decide, now that the barriers to copying have lowered significantly, what we WANT rather than only what is forced upon us by material reality.

  5. Norm Platt

    September 29, 2006 @ 3:09 pm


    I don’t think John Lennon had any access to a Virtual or CyberWorld, however, his song “IMAGINE” comes close to describing the “Declaration of the Independence of Cyberspace” which John Perry Barlow visualizes. Here’s the words:
    John Lennon
    Imagine there’s no heaven
    It’s easy if you try
    No hell below us
    Above us only sky
    Imagine all the people
    Living for today…

    Imagine there’s no countries
    It isn’t hard to do
    Nothing to kill or die for
    And no religion too
    Imagine all the people
    Living life in peace…

    You may say I’m a dreamer
    But I’m not the only one
    I hope someday you’ll join us
    And the world will be as one

    Imagine no possessions
    I wonder if you can
    No need for greed or hunger
    A brotherhood of man
    Imagine all the people
    Sharing all the world…

    You may say I’m a dreamer
    But I’m not the only one
    I hope someday you’ll join us
    And the world will live as one

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