Chris Woolfrey — FSFE UK Team Member

N.B. The following is really a set of questions than answers; if anybody knows the actual answers, please get in touch…

The computer is, among other things, a tool; perhaps more so in the workplace than anywhere else. And like many workplace tools — you only need to think about the factories of the 19th century — the computer is a place of discussion and power politics in the relationship between employees and employers, because it’s used as a piece of equipment. And it’s in the best interests of both parties, in that regard, to have control of the use of that equipment.

Indeed, most of us know, have probably experienced, and have certainly heard from others, that the boundaries between the “public and private” as well as “professional and non-professional spheres” have, if not legally then socially, gone some way in breaking down. Plenty of workers, from employers to employees, check social media networks and personal email accounts daily; plenty choose to surf the Web, if it hasn’t been locked off from them, and look at anything from The BBC and Wikipedia for news and info to using Grooveshark or Last.fm for music.

But We All Procrastinate from Time to Time…

In some companies that break down has been tacitly accepted: we all do it, and as long as we get our work done, a little distraction isn’t destructive. But from the point of view of data freedom, of software use, and of worker’s rights in relation to the tools they use to complete their work and  live out their lives,  the legal or contracted side of things remains unchanged.

For example, standard employment contracts, at least in the U.K., will often contain statements like the following:

• Any computer programs or software should be given to the company, undamaged and unaltered, if you leave the company
• If you use a company IT system it is the property of that company
• Those systems are allowed to be monitored
• As soon as you use any of that system you understand that the company owns it.

Now of those statements, each notes quite explicitly that any actions made by an employee relating to that tacit agreement are subject to punishment on behalf of the people who employ them. Which, if you think of the historic relationship between employees and employers, all seems perfectly fair: you work for them, right?

Depending on your political persuasion of course, you’ll believe that statement to be fair or unfair; and plenty, probably more unfashionably, would say unfair. But all that aside, and from the point of view of computer use, and (as far as I can get outside the realm of politics) of software, and who owns it, these statements seem less than clear.

Who Owns What?

Let’s take the fact that ‘all IT systems belong to the company’. I’m sure the legal position on this, in terms of best practice and in previous cases, is quite clear, but it doesn’t seem clear to me.  For example, it I was writing this at work, using Firefox as my browser, can it be said that what I’m doing, let alone what I’m using, is owned by the company? Surely Firefox own Firefox?

That leads on to the question of systems being monitored because they are subject to company guidelines. Yes they are, if you own them (as most contracts will relate the clauses, to my knowledge, to ownership), but Firefox operates under the Mozilla Public License so it can’t be owned by the company. As a result, presumably, anything I chose to do on it, strictly speaking, would not be subject to monitoring. Problem solved: the rights fall on the side of the employee. Surely?

If You Own It, They Will Bow

Ah, wait. But when you use the system you recognise that the company owns the property, by definition of using the system. This must be the get-out clause…

I use the company’s hardware. I’m sitting on my workstation, which belongs to the company because it is an “IT system”, so what I do with it, and on it, belongs to the company.

Rights fall on the side of the employer: case closed. But then we come to the final statement, that the system, including the software on it, can’t be modified or unaltered at the point that you leave the company; that the company own that software.

Makes sense, I guess: I do it on their workstation. But then that’s the beauty of Free Software: it puts power in the hands of the many rather than the few, and in so doing, grants power to employees and employers alike. After all, how can something which by its very nature escapes ownership be owned by a company, let alone an employee?

I would presume that copyright laws like the GPL, which necessitates that any works created under it must by law be modifiable, alterable, and Free, beats any employer’s guidelines in relation to software that uses GPL, or something like it? An employer, presumably, cannot by law dictate how an employee uses that software: it isn’t their legal right. Free Software, then,  can offer a genuine mandate to the employee over a computer which, generally, isn’t seen to be controlled in any way by them. That’s why so many people end up using it: Free Software grants the user power, not just Freedom. In one very important way,  it facilitates, in the words of Geoffrey Nunberg ‘the opening up of the right to speak’. It grants the chance, to people who use it, to act.

Into the Lion’s Jaws

Of course, on the flip side of that, I’d be interested to know more about how all this works in relation to proprietary licensing: if a company uses Windows, or Microsoft Office or whatever, surely they can’t equally claim that any use of IT systems is subject to their ownership, as they themselves enter into an agreement with Microsoft, which states that it is the property of Microsoft, when they buy the license.

But is it really just a matter of who owns the hardware? Is all of this rendered completely redundant simply because a company writes it into a contract and the employee signs it?Are all the virtues of Free Software that are just celebrated defunct, in the face of that contract?

Even outside these problems, I haven’t even begun to think about the irony of fighting off an employer (who you know and in plenty of cases trust) only to use a computer to log-in at a social network, where the same monitoring processes and ownership problems are no doubt occurring.

Anyway. On the subject of computers and the workplace, and of worker’s rights, Johan Söderberg presented a really interesting talk at FSCONS 2010. You can watch it over on FSCONS’ Vimeo profile.

Following on from my post yesterday, here’s something I read today about the ongoing copyright battles surrounding James Joyce’s novel, Ulysses, from Robert Spoo:

In remarks made during a broadcast over Irish Radio, Medh Ruane suggested a curious justification for reprinting Joyce’s words without leave of the Estate: “James Joyce used the city of Dublin and Dublin people in his books, so the argument goes that the people should have a moral and cultural right to use James Joyce’s material in different ways.” This is not the sort of argument that would carry much weight with a court, but it does point to some of the contradictions inherent in the private ownership of a public good like literature. Ulysses is a modern epic assembled from facts, personalities, and events in the Irish public domain; in that respect, it is not unreasonable for the Irish to view it as more immediately and intimately the property of the people than other works of the imagination. Joyce himself conceded that he was a “scissors-and-paste” man, an adapter and arrange of what came to hand. In the ecology of copyright, a work like Ulysses has its creatrive origins in the raw materials of the public domain.

I’m certainly no expert on copyright, but it’s interesting to consider, from the point of view of the excessively long copyright extensions granted to early 20th century works (in the E.U., 70 years after the calendar year of the author’s death; in the U.S., 95 years after the year the work was first published, for any book published between 1923 and 1977) just what exactly it is that “fair use” might constitute in relation to the origins of creative works, and how that might compromise the holders of these cripplingly long copyright agreements.

In Britain “fair use” refers to a slightly slippery agreement based, according to the U.K Intellectual Property Office, on economics concerns:

There is no strict definition of what this means but it has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use. Where the economic impact is not significant, the use may count as fair dealing. So, it may be within the scope of ‘fair dealing’ to make single photocopies of short extracts of a copyright work for non-commercial research or private study, criticism or review, or reporting current events.

In one sense, then, “fair use” is considered valid in situations where a work can be socially useful without bearing great burden to the holder of the copyright in relation to cost; in other words, it’s OK to use the work for the good of the public domain as long as in doing so the use of the work does not undermine the profitability of the work for the copyright holder.

Put simply: it is OK for me to quote Ulysses here, on my blog — “Stately, plump Buck Mulligan came from the stairhead, bearing a bowl of lather on which a mirror and a razor lay crossed.” — but not to take the whole book, or even one chapter, and probably not even several paragraphs, and then try and sell it.

To put it just as simply but in a different way: it seems perfectly acceptable for somebody to take from the public domain for economic good but not for the public domain to take what has been economically good back into the public domain.

After all, as Medh Ruane (I think logically) suggested, Joyce’s material was the streets, sounds, and people of Dublin; his work, good in itself, and, as literature, a public good — — to use Spoo’s phrase — was better than most because it identified and interacted with the cultural consciousness of Dublin, and presented it to anybody who wanted to read them…

…provided, that is, they agreed that “the moral right of  James Joyce to be identified as the author of this work” is perfectly reasonable, and that as a result, that culture engages with the work in a way which constitutes “fair use”: no derivative works, no remixing, no verbatim publishing.

Did Joyce take as verbatim, or remix, or make derivative works of, the people and places of Dublin? I’m not sure. But it’s worth thinking about, certainly: it’s also worth remembering, as Lawrence Lessig did, that because of these farcically long copyright extensions, the question will remain in question for an absurdly long time.

In other news, my friend and I put together the final notes for a bi-annual magazine we’re releasing, and it’ll go live online, as a PDF, next week. It’s called Banner and the copyright notice will read: “Licensees may copy, distribute, display, and perform the work and make derivative works based on it only for noncommercial purposes. Any of the above conditions can be waived if you get permission from the copyright holder.”

That waiver is something I’d like to investigate in more detail, when I have time: it feels like a strange “get out” clause.

As a final point, take a look at this site — http://statelyplumpbuckmulligan.com/ — which seems to be letting people sponsor words, including “Ulysses”, on the domain. Very odd.