# a blog about things that I've been thinking hard about

# Do You Live In A Protected Freedom Zone?

25 July, 2011
There are those who live inside the freedom zone, and perhaps don't even realise how lucky they are. And then there's the rest of us, who, for own good (or so we are told), live outside the zone.
by Philip Dorrell

## What's It Like Inside the Freedom Zone?

The Protected Freedom Zone is defined by three basic properties:

- Those who live inside the zone enjoy freedoms that those outside the zone can only dream of.
- Those inside the zone are encouraged, or sometimes required, to take actions which preserve the unfreedom of those on the outside.
- Although the benefits of freedom are obvious to both those who enjoy the freedom and to those who don't, the unfreedom of those on the outside is considered to be morally desirable.

## What Are The Examples?

In this article I will give two major examples of "freedom zones", and both of them have to do with intellectual property. In modern western societies, freedom is generally considered to be an intrinsic benefit. But necessarily we cannot all be free to do anything, and there are many situations where our freedom is limited.

Among all the reasons for restricting people's freedom, intellectual property is unique in that the actions of people are judged, not on their direct consequences, but on whether they undermine the economic contrivance upon which intellectual property is based. For example, if I give you a copy of a file, I am judged not on whether I gave you something useful, but on whether I undermined the right of the copyright-holder to prevent me from giving you a copy of the file.

From this contrivance, a paradox arises: those involved in the creation of intellectual property often seek to create environments where they have almost as much freedom to act as they would have if intellectual property didn't exist at all. They do so, because freedom helps creativity.

## Example 1: Free Access to All Academic Journal Papers in Academic Environments

If you have ever attempted to read original scientific papers on the web, you have probably encountered messages like the following:

> You do not have access to this paper. For 24 hour access, please pay US$30.

When you hit this "paywall", you will be asking yourself: how much do I really want to read this paper?.

You might also wonder: do university researchers have to think about this all day? Are they constantly trying to decide whether or not to pay US$30 for "full access" to a paper?

Of course the answer to these last two questions is that they don't. The institutions that researchers work for have institutional subscriptions to massive databases of journal articles, so that whatever researchers need to access, they can access it. Someone somewhere has to pay something for it, but it's not something academic researchers have to constantly think about.

In other words, academic researchers live inside a "freedom zone", which is paid for and maintained by the institutions they work in.

Now it's obviously a good thing that these researchers have the freedom they need to get their work done.

But, who's fault is it that these papers aren't free for everyone?

Oddly enough, it's the researchers themselves who make the decisions to write papers and have them published in journals as copyrighted and therefore "protected" content. Content which cannot be accessed unless you live inside the freedom zone, or, you are willing to pay US$30 per item.

Do the researchers themselves worry about this? Some do, but many don't. What they really worry about is: how prestigious is the journal that I'm going to have my research published in? And perhaps: how can I get the most mileage out of my meager research grant?

Is this immoral? Researchers who publish non-open papers are not limiting the access that their professional colleagues would have to those papers, because their professional colleagues also live inside the freedom zone. And if those living outside the zone don't like spending US$30, then that's their problem. Copyright allows copyright holders to dictate the cost and terms of access to copyrighted content. That's how copyright is supposed to work.

## Example 2: Software Developers in Large Software Companies

If you are a software developer developing software in a large software company, you don't personally have to worry about software patents.

If you are tasked with writing some software to solve a particular problem, you just sit down and write your software. You don't start worrying each time you write a new line of code that you might be infringing on someone's software patent.

If you work in a large software company, there are three main ways you are protected from the effects of software patents:

- The company itself owns a large number of patents. You are free to make use of any idea covered by those patents in your software.
- The company has cross-licensing agreements with other large software companies.
- Even if there is some risk that you may infringe on a patent not owned by your own company, and not included in a cross-licensing agreement, you are covered by the fact that you are an employee of the company. The ultimate risks of patent infringement are carried by the company. If there is some patent risk in software you have written, company lawyers will check out the risks. If a legal action does occur, it is the company that gets sued, and not you the employee.

Of course there is one price you have to pay for this protection from software patents, which is that the company has the right to apply for a patent on any inventive idea contained in the software that you develop. You do not have the freedom to not take away the freedoms of other developers. Which is a kind of an anti-GPL.

## Very Few People Have Maximum Freedom

Inside the "freedom zone", most workers are constrained by the contracts they have with their employers who support and maintain said zone. Workers in large companies have to work on projects which have been determined to advance the interests of their companies. Academics are under pressure to "publish or perish".

There are some researchers who have such a great track record that they may be given the freedom to work on whatever interests them. And then there are the tenured professors. But only a very small number of people ever get to enjoy this much freedom.

Those working outside large companies and large academic institutions have more freedom to choose what to work on, and they can make that choice without the requirement of an impeccable CV full of life-long accomplishments. But of course they must work outside the freedom zones. So they don't have the freedoms enjoyed by those inside the freedom zones. "Independent scholars" do not have free access to academic journals. Independent software developers do not have the freedom to develop software without risking legal action.

## Freedom and Creativity

The very existence of the freedom zones argues for the value of freedom to those who work in creative fields, whether it be creative discovery or creative invention. But somehow we, as a society, have convinced ourselves that restrictions on freedom are an essential "incentive" to the creative process.

We need to reconsider.

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