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Wednesday, November 03, 2004Via Lawrence Lessig) The Financial Times has published two opposing perspectives on sustainability of open source movement Excerpts:
Richard A. Epstein, James Parker Hall Distinguished Service professor of law at the University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution argues, Intellectual property often creates strange bedfellows on the left and the right sides of the political spectrum. On the left, many socialists oppose private property in all its forms. On the right, some libertarians, are deeply suspicious of the use of intellectual property to block the right of other individuals to think and speak as they choose. While they regard private property as acceptable for physical resources that cannot be used by everyone at once, they draw the line at intellectual property, which can be copied at close to zero cost. All this anti-IP rhetoric begs one question: how do we produce IP in the first place? On that question, the open source movement - is organised around three tenets. First, access to source code (the master plan that generates the zeros and ones to which computers respond) must be made available to all. Open availability allows other individuals to tinker with the original program with an eye to improvements in its ope(ration or extension in its use. Second, once someone incorporates open source software in his own programs, then any licence that he issues cannot charge others for its use or restrict them from making further modifications of the program. Third, each licensee agrees that all subsequent licensees may use or modify on the same terms as the original licensee.
The linchpin of much, but not all, of the open source movement is the General Public Licence (GPL) prepared by the Free Software Movement, which covers, for example, the Linux operating system. Its key provision reads: “You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”The GPL does not place open source software in the public domain. Rather, like the “copyleft” movement in general, the GPL often supplies, as with Linux, an all-enveloping ownership structure by which a central committee decides whether to incorporate proposed changes into the basic public program. (Anyone can keep whatever version he likes for personal use.) No cash compensation is paid to the self-selected improvers, who either work for the love of the game, or because they are supported by some third party payers, either in universities or industry, who want to keep this alternative platform alive.
There are two serious weaknesses with this governance system. The first is that the critical provision of the GPL set out above has not been tested. Yet it may prove vulnerable on least two grounds. First, as a straight interpretive matter, it only states what the obligation of each programmer is with his own private improvements. It does not in so many words specify the appropriate remedy when some portion of the open source code is incorporated into an otherwise proprietary program. Second, the clause might only bind those people who know that they are using open source code. The difficulties with the open source movement , moreover, go deeper than the problems with a single provision of the GPL. The open source movement may avoid these difficulties for outside contributors who work for credit and glory. But how do the insiders, such as Linus Torvalds, cash out of the business that they built? And in the interim, how do they attract capital and personnel needed to expand the business? Traditional companies have evolved their capital structures for good reason.If open source is less effective than proprietary software, that gap should not be ignored by positing some positive network externalities that come from giving it a larger base. Proprietary systems also show positive network effects from increased users, as software designers are always attracted by a larger installed base. It’s a tough world out there, in which no one should be exempted from the general competitive pressures of the marketplace. The fiduciary duties of government( for those governments pushing to use opensource) to all citizens demand no less.
James Boyle, William Neal Reynolds Professor of Law at Duke Law School, a board member of Creative Commons and the co-founder of the Center for the Study of the Public Domain gives his counter viewpoint - The article gives two main reasons for open source’s doom. The first is an attack on the vagueness in the General Public Licence, the licence common to most “free software” and much “open source software.” Listen to the market.Global businesses such as IBM have very good lawyers. They are not known for investing billions of dollars into businesses built on licences that are simultaneously vague and imperialistic. Unenforceable licences are also unpopular. The market is discounting Microsoft’s stocks moderately because of fears about the competitive challenge posed by open source, and discounting open source-reliant stocks mildly, because of fears about legal challenges to the GPL or software produced under it. (The much-hyped SCO litigation, interestingly, is not a challenge to the GPL itself.) That does not mean that the free software movement will inevitably triumph. Nor does it imply that the GPL is seamless - no licence is. But every business has an element of legal risk, or contract-uncertainty; the GPL seems to me - and, so far as I can tell, to the market - less uncertain than most. Courts strive to interpret licences so as not to undermine legitimate expectations. Legitimate expectations here would include “multi-billion dollar enterprises that people have erected on the premise that this licence actually works.” Courts are also unlikely to doom multi-billion dollar proprietary software businesses just because someone inadvertently included a line of GPL code. There are lots of reasons that people write open code. They want to solve a particular problem and don’t mind others getting the fruit of their efforts, because they themselves benefited from the earlier work of other programmers. They believe in free software. They hope to get a better job. They are good at coding, and like to display their virtuosity. They are paid to do it. The last category is an increasingly large percentage of the whole. Amazingly, IBM now earns more from what it calls “Linux-related revenues” than it does from traditional patent licensing, and IBM is the largest patent holder in the world. This does not seem like a community that is declining.
People used to say that collaborative creation could never produce a quality product. That has been shown to be false. So now they say that collaborative creation cannot be sustained because the governance mechanisms will not survive the success of the project. Tthose who are influential in the free software and open source governance communities feel that they are doing very well indeed. In the last resort, when they disagree with decisions that are taken, there is always the possibility of “forking the code”, introducing a change to the software that not everyone agrees with, and then letting free choice and market selection converge on the preferred iteration. So far, “forks” have been comparatively rare, but are not unheard of; the tradition of “rough consensus and running code” seems to be proving itself empirically as a robust governance system. Generally, most of the government recommendations to invest in open source are based on assessments that, for a particular task, open source is actually superior and that adopting open source has important benefits because of its design - including ease of modification, and ability credibly to pressure proprietary providers to lower their prices. Case in point is the UK govt.
The key implication of a principle of neutrality would be to change our intellectual property policy. If we were truly neutral, we would be as concerned about the impact of software patents on open source software development as about the impact of illicit copying on closed source software development. We would spend as much time thinking about how to encourage distributed creativity as we do about encouraging proprietary “top-down” creativity. That principle of neutrality would be worth adopting.
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