David Wiley started it, Bill and Darren continued the discussion. Stephen Downes jumped in. At issue: is there a need for a “Fifth R” in what we have come to know as classic 4Rs openness? Does openness require a “right to retain” the work?

I have some ambivalence here — the fact we need to express a fifth R is a symptom of the way the system is increasingly being gamed. As Darren Draper notes, your rights under a CC license are irrevocable. How is retaining those rights insufficient? Must we retain an object as well?

When I think about these questions, I’m always drawn back to Chris Kelty’s Two Bits. Unlike many commentators, Kelty doesn’t see a single “freedom” in free content/culture springing from abstract definition. Rather, the original example of Free Software is “modulated” into other domains, sometimes taking very different forms. But fundamental to all these modulations (including Open Education) is an idea Kelty calls a “recursive public“:

Recursive publics are “recursive” not only because of the “self-grounding” of commitments and identities but also because they are concerned with the depth or strata of this self-grounding: the layers of technical and legal infrastructure which are necessary for, say, the Internet to exist as the infrastructure of a public.

The point here is that while the political activity and legal structure of a public is often seen as a different sort of thing than the technological affordances available to it, modulations of the Free Software concept break down that barrier. The indivisible nature of such efforts is well captured by the title and content of Lessig’s early work Code, which plays with the meaning of the word: the legal code (the text which defines) and computer code (the text which defines and implements). And the importance of that second piece goes all the way back to Free Software’s beginnings. The likelihood is that Richard’s Stallman had the legal rights to solve the original printing issue he had back in whenever-ago; what he lacked was the source code to solve it. The key demand that modulations of Free Software make is not simply “rights”, but for technological structures and norms that allow and encourage the exercise of those rights.

So it’s true that the “right to remix” probably implies the right to retain (as does the right to redistribute), and the irrevocability of Creative Commons licenses implies perpetual rights to access. But rights without sufficient affordances to exercise them form exactly the sort of “fauxnership” that Free Culture is supposed to oppose. A perpetual right to use something contained in a time-limited system doesn’t cut it, and requires the ability to download, retain, and republish for the right to be meaningful. This technical architecture is as much a part of those rights as the legal architecture that expresses them. If asserting a right to retain helps to separate ownership from fauxnership then it’s a right worth articulating.