Openness in Management Strategies

Although I am studying Instructional Psychology and Technology, most of my professional career has been spent in executive management in different business and education organizations.  One common concern that all business strategies need to address is the need for innovation and continuous improvement.  There are myriads of books, seminars, webcasts, podcasts, consultants, and firms who make a generous living selling their ideas (in publication and in person) to business leaders who are always wrestling with strategies to keep their business at the front of the market and their organization at the state of the art.

Most strategies die when they encounter the human nature that the employees, managers, and shareholders exhibit.  Change is never welcome, and ownership of product, market segment, or bureaucratic kingdom position are defended by those who perceive that they are the owner.  Innovation and change are threats to the status that people have obtained.  That threat is felt from the level of responsibility of the senior executive in the scope of the business, products, and marketplace to the level of responsibility of the clerical assistant concerning the processes and tasks that are the majority of their assignment and most of their daily work.  Change and innovation are always threatening.

As I have reviewed all of these materials on the "open" and "free" movements I have been struck by some thoughts these past two days.  We are wrestling with innovation initiatives in my current organization and we have had meetings, visits from outside consultants, and spent countless hours considering the changes that we might make to nurture more innovation.  We have failed to make great progress in anything other than talking about it.  Taking something from the theoretical (where everyone wants to talk about it) to the tangible implementation (where no one wants to DO IT) is the pattern that we see.  As Dr. Wiley highlights in his presentation on open educational resources (http://www.youtube.com/watch?feature=player_embedded&v=Rb0syrgsH6M) policy protects the status quo.  Most policies in any organization, at any level, are largely designed to preserve things as they are because that is what they were meant to be.  Violating or changing policies changes the design of the thing to make it something else.

I have considered the patterns that I have encountered in nearly every place I have worked that have stifled innovation.  These last three weeks have given a voice to my analysis and synthesis of these observations.  The emergence of an open approach to improving things (software, education, etc.) that allows a larger community of developers to view and suggest improvement in the "thing" that is yours is the shortest, and likely the most successful, path to improving and innovating and making your "thing" better.  Too many managers become territorial and possessive of the thing that is theirs to manage.  Defensiveness and protection (copyright?) where change and improvement must be theirs to consider, design, and implement is a standard practice.  Their livelihood could be negatively impacted if they give control to someone else by seeking or (heaven forbid) implementing someone elses' idea about our "thing."

An open approach, where we seek the input from others, seems to be the best approach to making things better.  All that we have read and watched these last three weeks has caused me to believe that truly successful and timely innovation must be from openness and collaboration.  I am convinced that the impending threat and fear that openness brings to the creators (or the "owners") of things is that they will lose their specialness related to these things.  In our modern times it is that specialness that we believe put the food on the table and the roof over the head.  Everything that is uniquely mine to own and maintain, mine to control, is mine to exploit and to provide the necessities that will keep me secure.  

This is true not just of the creative works that we have been talking about in the oer class, but it is also true of the products we design, manufacture, and sell.  It is true of our positions in organization and the work that we do in those organizations.  It is true of our community and the position we hold in that community.  The more input or control we extend to others, the less special we are the greater the threat to our security.  That is the human nature that I believe plays into concerns about openness.  That is also the human nature that kills many of the greatest creative and innovative endeavors in the cradle, particularly if we are not it's parent.  Eastman Kodak invented digital camera technology in the 1970s, but they had the reputation for the best film.  What to do?

A community that shares with a common goal of improving the community will be the most innovative.  Such a community will only endure and thrive if that community is more concerned that the innovation needed is for the good of the community rather than the good needed for themselves.  Our survival instinct is very powerful.  Our ability to do something that makes us different than others seems to imbue us with a stronger feeling of a position of power.  If there is something vitally different and special about us then that makes our survival more critical than that of others.  If we lose that specialness, then we have no greater claim to power and survivability.  We become just like everyone else.  And at least in our human natures that seems to be threatening.  It is just safer to stay where we are and protect what we have then to try something new, even if there is greater benefit to all of us in doing so.  And particularly if it was someone else's idea.

Do we call it Linux?  Or is it GNU/Linux?  Perhaps it depends on who needs to retain that sense of "specialness."

One Last Post on Judicial Support of CC Licenses

One other link that I found in my search of rulings supporting Creative Commons license protections for the holder of copyrights is at http://wiki.creativecommons.org/Case_Law.  This is a wiki page that shows case law supporting the licenses.

Those reading my blog from my first post on this subject have had the opportunity to go on a research adventure with me.  I apologize to those who were already aware of these rulings and the web pages that provided quick access.  But thanks for playing.

The case law that is listed on this wiki seems fairly scant for such an important legal protection, at least as it seems to be of such concern to most creators of copyrightable works.  But I believe that they are critically important to showing that the use of this license does not degrade the ability to protect the creative work from infringement as the creator would define it. 

I believe these rulings are sufficient to convince concerned creators that their rights are protected when they share their creations.  I also believe that most creators will value the evolution of their creations, both in terms of the improvements that sharing will provide, and the value that will be derived from society through that evolution.

Other Creative Commons Rulings

In my last post I talked about rulings in the U.S. that upheld the copyright privileges of a rights holder when the terms of the creative commons license were violated.  I found two other cases (I cheated on these and went to the Creative Commons website) where international jurisdictions upheld the rights of a copyright when the license terms were violated.  The first case is from the District Court in Amsterdam from 2006 and is summarized at http://creativecommons.org/press-releases/entry/5822. 

The second case is from Spain (also from 2006) and is summarized at http://creativecommons.org/weblog/entry/5830.

In the document at this link, http://creativecommons.org/weblog/entry/5823, the author was amused by the questions that she was getting about whether the Creative Commons license had been supported judicially. The author, Mia Garlick wirtes:

Many people have asked us over the years whether any court had held that CC licenses were enforceable. I have always found this question to be amusing. In my many years as a lawyer in private practice, if the licenses I had drafted were *not* litigated, then I was considered to have done my job well. But for some, it seems that keeping people out of court is not an indication of CC’s success; the legitimacy of the CC licensing system depended on some judicial validation.

While I am sure that this is humorous, it seems important to me that we can rely upon some of these judicial rulings supporting the license's protection of rights when explaining the benefits of sharing their copyrightable works while still protecting their rights.  I believe that there are large numbers of people creating content that would be beneficially shared who are not familiar with licensing to allow sharing who might be willing to share if they understood it.  The courts in most countries are the final arbiter of protecting the use of creative works as the creator intends.  I think the ability to point to ruling supporting the rights of the creator to insure that the manner and outcome of sharing can be monitored to comply with their wishes they might be more willing to "give up" some of the perceived rights that traditional copyright protection enjoys.

Jacobsen v Katzer and Open Licensing

In my last post I mentioned my curiosity about whether the rights of a person holding a copyright would be recognized judicially as a protection of that copyright.  I researched this and found the case of Jacobsen v Katzer in the U.S. where the Appeals Court ruled that the license did protect the copyright of the licensor.  In writing about this case, Fitzgerald and Olwan (2008) http://eprints.qut.edu.au/15148/1/15148.pdf write:

"This a landmark decision because it confirms that free and open source software copyright licences and by analogy open content licences that are similar in style to the Artistic Licence are:

1)copyright licences
2) which impose licence conditions which if not satisfied can found an action in and the grant of remedies for copyright infringement and
3) are legally enforceable

This in turn provides individuals, businesses, universities and governments that use these types of licenses to distribute and acquire code and content with a greater degree of confidence in their legality."

This case was remanded to the circuit court for that court to hold a trial to determine if the facts supported the specific claims that were required to preserve the copyright under the license.  But the important fact was that the license was upheld as legitimately protecting the copyright of the rights holder.

In addition to the Fitzgerald and Olwan link above, I also link you to http://www.mmmlaw.com/assets/files/article_368.pdf which is another good summation of the ruling by Paul H. Arne at mmmlaw.com.

Open Education Licensing

This past week for the open ed class we reviewed several documents and a video regarding issues related to copyrights, fair use, and the creative commons licensing that rights holders can use to share their innovations without relinquishing their rights.  I asked Dr. Wiley if there were any circumstances where a creative commons license had been violated and the courts had supported that license in ruling against the violator.  He replied that there was some case law and cited an example.  I hope sometime during the next week or two to identify a case, particularly in the U.S., and see the basis for the ruling.

I personally agree that a society that innovates needs to find a way to share intellectual property in such a way that the personal financial and ownership value that is derivable by the rights holder is not lost while allowing that property to be usable by other innovators.  I am sure that there is, or shortly will be, some circumstance where court will have to rule on some type of damage claim made by a creative commons licensor when another person uses the license in an inappropriate way and derives some income or recognition through that inappropriate use of the license.  Since I am new to this area this information may be commonly known to those who have had an interest in these ideas for some time.  I am eager to seek these cases out and see how the judges justified the ruling protecting the rights holder and the basis for damages assessed.