The Open Road

Right now, the government awards road-building contracts to large construction companies. But imagine the government decided to end these contracts, and to simply grant anyone who wanted to build a road a license to build a road.

It would still be a complex process, of course. Road-builders would have to secure easements and concessions from landowners, assemble road-building technology and staff, and of course put asphalt on the ground. After construction there would be ongoing issues of maintenance and management.

Still, such roads would be built. Some of them might be barely more than tracks - that's what we saw in the early days of concession roads. Such a road really was just some land granted to open access, where people could drive their carts without crossing someone else's property.

It wouldn't be long before people put tolls on these roads. That's what happened in Britain, as the common lands were enclosed, a network of toll roads developed, and travellers would have to pay a tariff every few miles.

In such an environment it is inevitable that there would be a call for open roads, sometimes also known as free roads, or freeways. The logic would be inescapable: toll booths are like sand in the engine of the economy, causing a harmful friction.

Toll Roads and Navigations:The toll roads and some of their dates are shown in red. River Navigations (improved rivers, even if primarily with drainage in mind) and canals are in blue. The stagecoach route came through Peterborough. The road off (not shown) that passes Barrow and ends at New Holland connected the re-routed stagecoach with the new ferry. (Source: Bennett, 1999, 86)

A movement would develop around the idea of free and open roads, and a logo and map system shared among open road owners and users. We could imagine an organization developing, 'Locomotive Commons', to create standard licenses governing the operation of open roads.

How would the people who owned toll roads respond? Well, we can imagine what they would do from analogy in other fields, like publishing.

Some would be vehemently opposed to open roads, and demand that the government not create or support open roads, as they create unfair "competition" to their toll roads.

Others, though, would embrace the free and open road movement, but they would redefine what the words 'free' and 'open' meant. Basically, a road would be 'free' and 'open' if - and only if - the person managing the road had the right to set up a toll on the road.

Any other license governing the use of the road would be considered to be "more restrictive" and "less free". This would be the case because it would 'restrict' the road manager's 'freedom' to charge tolls for the use of the road.

"You can always take another road," declared the proponents of the new "Free Road" movement. "Nothing prevents you from you from taking one of the more restrictive roads that do not allow the construction of toll booths."

Because of the number of people opposed to toll gates of any kind on the roads, the Locomotive Commons foundation established several different types of license, including:

- LC:NT - the non-tolls license, which prohibited managers from setting up toll booths, thereby ensuring people traveling along the road would never need to pay a toll.

- LC:IA - the "intersect alike" license (IA), which stipulated that if your road connected to a road with a certain license, it had to share the same license. Because, after all, if any part of a road becomes a toll road, it has the effect of making the whole road a toll road.

The "Free Road" movement launched a full-scale opposition to these licenses. They called them "restrictive" and argued that "people should have the right to make a living from the roads" (even if they did not actually build the roads).

Foundations (some funded by the original road-building construction companies that were losing out on the lucrative traffic) organized conferences to make "Declarations" defining the meaning of "free" according to "four freedoms: the freedom to run the road; the freedom to map where the road goes; the freedom to share the road with others; and the freedom to add other roads to the road."

Of course, "sharing the road with others" might involve setting up a toll booth; and any interpretation of "share" that did not allow the establishment of a toll booth was considered a "restriction" on one of the four freedoms.

Eventually, with considerable foundation support, and also the support of organizations that built tolls and managed toll roads, a lobby emerged with enough voices to convince Locomotive Commons to declare that some of its licenses - specifically, the ones prohibiting tolls on the road - to be "not free".

Eventually people just used the new "Free Roads," paying their tolls every few miles, because there was really no alternative. The "Free Roads" wouldn't connect to the "restrictive" No-Toll roads, partially because of the intersect-alike clause, and partly because NT roads really did connect to other places, and the Free Road owners simply didn't want the competition.

Not that it would have mattered. The Free Road owners could always depend on exclusivity. Often, the only way to get from point A to point B was to use a Free Road - they would obtain the concession (and often public financing) to build a Free Road over a river or through a mountain pass, and if you wanted to use it, you had to sign up for a Free Road Account and you would be billed for the full distance traveled, whether you used Free Roads or NT.

Young people would grow up angry about the tolls and fees, and opposing the cost of roads (which most of them couldn't afford anyways). They would join the Free Road Foundation or the Open Road Movement and lobby against corporate subscription-based roads.

But in the end, they found themselves arguing in favour of allowing tolls, because they were arguing for free and open roads, and had learned that licenses prohibiting tolls were actually less free and less open than Free Roads.

Off to the side stood now thoroughly discredited (or, at least, shouted down) the original no-tolls advocate. He had just wanted people to be able to move freely through the land without barriers and hindrance. He wanted people to explore the country no matter whether they were rich or poor. And he even understood how important the opening of free roads across the land was to health, education and commerce.

Now he reflected on a world where traveling down a "Free Road" would cost you money, and where the meaning of "Open Road" meant "could have tolls or barriers." And he began to wonder what would happen when these new meanings of "free" and "open" began to be applied to things like speech, religion, justice and the vote.

Because nothing is "free", I guess, unless someone can come along and charge you money for it.

p.s.

On 12/06/2013 12:58 PM, rory wrote:

If someone closes off OER, someone else can reproduce it elsewhere ad infinitum at no cost. This bears no resemblance to roads with their physical limitations.

I did address this in my text, but having heard from several people on this point now, I conclude my analogy may be been too subtle.

This was not an argument I hadn't anticipated. Here it is restated in my analogy: "You can always take another road," declared the proponents of the new "Free Road" movement. "Nothing prevents you from you from taking one of the more restrictive roads that do not allow the construction of toll booths."

I did answer it at length (though none of the critics gives me credit for even trying).

In order to reproduce something (let it be a road or an OER) one must first have access to the original. Once a commercial version of the resource exists, there is significant incentive on the part of the commercial owner to block or limit access to the original, so that the only available version is the commercial version.

I have over the years identified (and linked to in my newsletter) numerous examples of how access to the original free resource may be limited:
- legal challenges and FUD - making it too much of a risk to use the non-commercial resource
- poisoning - using technical and legal requirements requiring that resources in some way be 'certified'
- flooding - making the free resource just one out of hundreds of versions, pushing the free resource down in search results
- book-storing - creating self-contained environments in which links to free versions are not available
- salting - adding 'extra value' to the commercial resource not available in the free resource
I could add many more but you get the point. These are clear and obvious to anyone who actually looks for them; the evidence is as plain as day.

In my analogy I represented this response as follows: "Eventually people just used the new 'Free Roads,' paying their tolls every few miles, because there was really no alternative. The 'Free Roads' wouldn't connect to the 'restrictive' No-Toll roads, partially because of the intersect-alike clause, and partly because NT roads really did connect to other places, and the Free Road owners simply didn't want the competition.

"Not that it would have mattered. The Free Road owners could always depend on exclusivity. Often, the only way to get from point A to point B was to use a Free Road - they would obtain the concession (and often public financing) to build a Free Road over a river or through a mountain pass, and if you wanted to use it, you had to sign up for a Free Road Account and you would be billed for the full distance traveled, whether you used Free Roads or NT."

Again - maybe too subtle.

A great deal is made of the fact "non-rivalrous goods like data on the Internet" can be reproduced at will. But in publishing and commerce generally, there are rivalrous goods. The time and attention of readers, the trechnology at their disposal, the balancing of rights and regulations - all these are rivalrous elements in what would otherwise nonriovalrous market. It is from my perspective a naive and unsupportable argument to suggest that people can just reproduce free copies of these newly-commercialized resources.

Indeed, if the business model of publishers of CC-by content were so easily disrupted, there would be no return on their investment, and they would never get into the business. The very fact that there is a pro-commercial lobby for the use of (otherwise) free resources is itself proof that the "you can just make free copies" argument is fallacious.

OK, that's it, I'm done. No more arguing from me on this. If you continue to support the "everyone must support CC-by" position, I will simply regard you as being against free and open access to learning and learning resources, and working instead for people trying to privatize the education system, puting your own narrow self-interest ahead of wider social values (putting you in my mind on par with banks and the oil industry).

"Let's see someone close off the route to Europe from America. As long as the air and water are free they can close off what they want and who would pay attention!"

Indeed. There are millions of would-be immigrants around the world who would only wish that were the case. They wish nobody had thought of a way of defining 'free' in terms of borders. I do know that anyone attempting to cross from Europe to North America by means of a purely non-commercial route will be arrested for immigration violations. The Open Road has truely been closed.

p.p.s.


One more, and then I'm done, I promise!

Pete Forsyth wrote to this list, in part:

* Mr. Downes first (publicly) described the works of Shakespeare as "easy" to define in terms of openness; but when pressed for what that easy answer was, he (privately) described the issues as "complex" and outside the realm of a simple yes/no answer.
* He inquired (due to a misunderstanding of my questions) about the availability of the introduction and index of a certain edition of Hume's Treatise. For any who are interested, it is here, in several formats: http://openlibrary.org/books/OL23349825M/A_treatise_of_human_nature

I have learned a few things about Mr. Downes' thinking on the matter; I don't find any of it persuasive; and I have found his approach hostile and disingenuous. I intend to withdraw from this discussion.

I admit that I have become increasingly frustrated by this discussion, and I have been snippish to some people, for which I apologize.

But my desire to stay off-list was based in my belief that people on this list don't want to watch the back and forth debate on the point I raised. However, now that a version of it is on list, I offer you the full text of the discussion, and readers can decide for themselves whether my responses have been accurately represented above, and whether I have been hostile and disingenuous.


On 12/06/2013 1:39 PM, Pete Forsyth wrote:

Rather than exploring a complex hypothetical scenario, why not look at a real educational resource with an extensive history that long pre-dates CC licenses, and consider whether or not we consider it "open"--

The play Hamlet is in the public domain, and as such, there is no restriction on its reuse relating to whether or not that use incurs profit. (There's nothing analogous to the "NC" provision.)

So, any publisher can -- and many publishers have -- charged money for it. I find it difficult to understand how that can be described as locking it down or preventing reuse, because it can also be downloaded for free (or at least, free of charges beyond the needed equipment) from places like Wikisource: http://en.wikisource.org/wiki/The_Tragedy_of_Hamlet,_Prince_of_Denmark/Act_1

But more to the point, a (non-profit) high school *or* a (for-profit) theatre company may perform Hamlet without paying anybody a royalty.

It seems to me that your position is that Hamlet is not free, because there is no provision protecting it from commercial exploitation. Is that correct? 


(My response)


Shakespeare is easy. Do a real-life one: David Hume, A Treatise of Human Nature, ed. L.A. Selby-Biggs (Oxford: The Clarendon Press, 1888) (be sure to include Selby-Biggs's introduction and lengthy index, which are the real values of this edition).

I think you'll find that for pretty much every public domain work other than the few painstakingly gathered in Gutenberg the argument I offer stands up pretty well.

-- Stephen



From:Pete Forsyth []
Sent: Thursday, June 13, 2013 11:15 AM 

Sorry to belabor the point, but I don't understand your answer -- what is the easy conclusion? It's free and open? Or it's not free or open?

> Do a real-life one:

The reason I chose Shakespeare's Hamlet is precisely because it is real-life. It's a play I've both paid to read, and read for free; and that I've both paid to watch, and watched for free. As far as I know, no royalties exchanged hands when my high school put it on. I've learned from it in both formal and informal environments, and I suspect many others on this list have as well. To me, this seems like the quintessential OER.

In what respect do you consider it not "real-life"?

-Pete

From: Pete Forsyth []
Sent: Thursday, June 13, 2013 11:22 AM

Stephen, I replied on the list about Shakespeare. I don't understand why you're bringing up Hume -- but in direct response to that example, isn't that online and freely available? Is this not the introduction you're seeking?

http://archive.org/stream/treatiseofhumann01humeuoft#page/n15/mode/2up

-Pete

Hiya Pete,

I used the Hume reference instead of Shakespeare because Shakespeare is low-hanging fruit. It has been reproduced in Gutenberg and received wide circulation.

But the vast majority of public domain content is *NOT* freely available in the way that the Shakespeare is freely available. Shakespeare is the exception, not the rule.

That’s why I referenced the 1888 Selby-Biggs edition of Hume. It’s clearly in the public domain. But you just can’t find it anywhere; the only way to get it is to buy it. This is true of the majority of public domain work (and, ultimately, will be true of the majority of CC-by work).

You found an edition of Hume’s Treatise, but *NOT* the Selby-Biggs edition. I picked this edition specifically because Selby-Biggs added a long interdiction and famous analytical index. You cannot find that edition anywhere. At least, I couldn’t.

-- Stephen

> Shakespeare is the exception, not the rule.

You seem to be making an incorrect assumption about the conclusion I'm trying to draw. I'm not interested in whether or not the treatment of my example is typical -- only in whether or not you consider it to be free and open. You have yet to answer that, here or on the list.

> You found an edition of Hume’s Treatise, but *NOT* the Selby-Biggs edition.

Well, it's edited by Selby-Bigge, and was first published in 1888. It also has a very detailed index, and a preface that explains why it has such a long index. If there's more to it than that, and I missed the version you're seeking, never mind I guess. But I don't see how any of this is germane to my question.

Pete


My mistake, you did find the Selby-Biggs edition. It didn’t show up at all on the Google search (which is kind of my point, that the OA versions get buried). How dod you find it?

> I'm not interested in whether or not the treatment of my example is typical -- only in whether or not you consider it to be free and open. You have yet to answer that, here or on the list.

You’re just using a rhetorical trap, trying to get me to provide simple yes-no answers to complex questions. My point isn’t (and never was) a simple statement about whether ‘X’ resource is free and open. Under some circumstances the work could be free and open; under other circumstances the same work might not be. Right now we have no problems accessing Shakespeare, but longer term, after publishers do the Napster treatment to Open Archives and Gutenberg, we will have significant problems. My argument is that CC-by licensing doesn’t convey unique protections on resources, and that of a CC-by resource is a ‘free’ resource, it is no less legitimate to call a NN-NC resource a ‘free’ resource.

This isn’t about ‘winning’, it’s about understanding the environment in which we work, and rhetorical tricks don’t help with that.


From: Pete Forsyth []
Sent: Thursday, June 13, 2013 1:42 PM 


> My mistake, you did find the Selby-Biggs edition. It didn't show up at all on the Google search (which is kind of my point, that the OA versions get buried). How dod you find it?

I went to the Internet Archive, and using their search engine. In my experience this is a vastly more effective way of finding PD works than Google. I highly recommend it.

> I'm not interested in whether or not the treatment of my example is typical -- only in whether or not you consider it to be free and open. You have yet to answer that, here or on the list.

You're just using a rhetorical trap, trying to get me to provide simple yes-no answers to complex questions.

No, no trap -- I just wanted an answer. "It's complex" is a perfectly good answer, and helps me understand your thinking, though I'm still not sure why you're only answering here and not on the list where I asked.



This isn't about 'winning', it's about understanding the environment in which we work, and rhetorical tricks don't help with that.

At this point in this discussion, I have a lot more confidence in my own understanding of that environment, than in yours. You're free to disagree.


 
From: Pete Forsyth []
Sent: Thursday, June 13, 2013 3:37 PM

All:

I'd like to follow up on the Hamlet example I introduced. Mr. Downes replied on one of these lists, and separately in private; while I wish to respect any desire to keep specific comments private, I think a couple points in summary merit followup to the lists.

* Mr. Downes first (publicly) described the works of Shakespeare as "easy" to define in terms of openness; but when pressed for what that easy answer was, he (privately) described the issues as "complex" and outside the realm of a simple yes/no answer.

* He inquired (due to a misunderstanding of my questions) about the availability of the introduction and index of a certain edition of Hume's Treatise. For any who are interested, it is here, in several formats: http://openlibrary.org/books/OL23349825M/A_treatise_of_human_nature

I have learned a few things about Mr. Downes' thinking on the matter; I don't find any of it persuasive; and I have found his approach hostile and disingenuous. I intend to withdraw from this discussion.

-Pete