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Community: Why Open Source IP Is Viable

Oct 25, 2004, 22:45 (8 Talkback[s])
(Other stories by Doug Dingus)

Professor Epstein,

I just finished reading your article in the Financial Times, linked from Linux Today. I believe you are missing a number of critical points in your analysis of the viability of Open Source.

You correctly state programs licensed under the GPL are not put into the public domain. However your next few statements regarding the all-encompassing ownership program are misleading. It is true that many OSS projects are led by committee. It is also true that contributors are not compensated financially. Additionally, it is only partially true that users may keep any version of the code for personal public use. Finally, there is no basic public version of the program. All versions are public in that any user can make use of them.

The committee exists to serve its users. The open nature of the code is an effective check against poor stewardship, much as market share can be a check against poor development of closed code. Secondly, users are free to keep, develop and use any version of the code for any use, not just personal use. This is important because the permitted development of alternatives helps to greatly increase the viability of the check, imposed by open code, on the committee currently acting as steward of the project. Finally, the code is owned by those that contribute to it. The Free Software Foundation does request owners of code transfer their copyright to them to facilitate legal defense of the open code pool, but this is not a requirement for participation.

There are also errors regarding your analysis of GPL weaknesses. You state the GPL has not been tested in court. While this is technically true, the number of successful resolutions to this problem indicate both a community willing to address the issues and a solid licensing foundation with enough teeth to make such resolutions compelling to both parties. It is FUD to say the GPL is weak because it has not been court tested without also bringing to light GPL success as well.

The remedy for open code inclusion into closed code is roughly the same remedy sought for closed code inclusion into other closed code. Copyright law serves the creators of open code as well as it does closed code. In this, the remedy is clear; either remove the offending code, or modify the license of the entire code body, or seek alternative licensing with the owners of the code. This is reinforced by the above mentioned community willingness to address problems.

Your next statement is FUD as well. You incorrectly assume that part of the purpose of the GPL is to infect closed projects in a viral way. This is simply not true. Those of us who choose to license our work under the GPL do not intend to infect closed works with our own. We want only to insure those who choose to leverage our work abide by the terms of the license; namely to keep the code open for all to use. The cost for use of open code is that the code remain open.

Put simply, the GPL does not allow a free lunch for business wanting to make use of GPL licensed code. Either they contribute to the pool in a like manner, avoid use of the code, or seek alternative compensation and licensing for their project. If these terms are not acceptable, perhaps BSD licensed code is a better choice.

Given the above, your suggestion that the Microsoft operating system would be forced open due to accidental GPL code inclusion is a fantasy at best, fallacy at worst. Microsoft has the same options available to it that any other closed source business does; namely (as stated above),

  • open the derivative work with a GPL compatible license,
  • remove the offending code,
  • seek alternative licensing terms with the owners of the code.

The same courts that would deny Microsoft exclusive rights to derivative works based on their code, which would be difficult given their code is closed, would also correctly enforce the options detailed above for GPL licensed code.

Note that paying damages for the inclusion is not an option, unless the owner of the code finds this acceptable.

The assumption that the GPL only applies to those who knowingly make use of GPL code is laughable. Traditional copyright law does not grant an ignorance exception! Once anyone becomes aware of GPL code inclusion in their project, (I assume you are talking about development use here because your use of the word 'use' is not clear in context.) they have the same options mentioned above to seek proper resolution to their dilemma.

You state Open Source is akin to a workers commune. This assumption is flawed because it does not take into proper account all the compensation both contributors and users receive from the Open Source process. You write about shares and collective ownership and monetary compensation as if the Open Source software itself has no value when it clearly does.

The growing pool of GPL licensed Open Source software represents significant value for anyone wanting to make use of or contribute to it. Unlike a work commune producting products, groups of people contributing to Open Source software pools benefit from the unique quality of software; namely, next to zero distribution and duplication costs. These properties allow for the value of the software pool to exceed the individual value of its contributions.

For a user, their investment in learning required to make good use of the software pool yields far greater returns in terms of software capability. Said user could, for example, perform almost any computing task they want to accomplish on just about any capable hardware platform without recurring license fees and EULA restrictions. Given the low cost of computing hardware available today, this particular value proposition of GPL licensed code is quite attractive compared to the high cost of proprietary software that comes with its own separate investment in education as well. Further, this user can continue to receive value from their efforts by passing along their knowledge and methods to others wanting to begin their own use of the growing Open Source software pool.

For developers, the situation is similar, provided they come to acceptable licensing terms with the Open code developer community as detailed above. Developers can leverage the pool of software in their own projects much as they would other closed software toolkits.

Companies today are supporting Open Source software development by funding key developers. They also purchase companies, like Novell did with SUSE, in order to achieve greater synergy between their own projects and the open ones. However, none of these efforts change the GPL nature of the code, while all of them remain subject to the check posed by the users and other interested developers.

Because the software remains licensed under the GPL, anyone moving away from serving the users best interests will be subject to alternative projects and methods that will restore that balance. Contrast this with closed source companies who buy competing products only to bury them in favor of their own at the users great expense.

All in all, the number and nature of the errors in your analysis does not lend credence to your conclusion. Open Source software has and will continue to change the very nature of software development. It also leads the transition from selling software solutions to software services. This transition will see the value of large closed software development houses diminish, unless they serve a niche best supported by closed methods. As the sale value of software diminishes, the use value will rise for everyone. This in turn will raise the value of the skills necessary to make best use of the growing open software pool.

Regardless of the accuracy of my conclusions, one thing is clear. Open Source software will continue to exist as long as its user base wants it to. Given the growth in this user base today, any assumption that Open Source software will fail on its own merits is not well supported at all.

Respectfully,

Doug Dingus

Related Story:
Financial Times: Why Open Source is Unsustainable(Oct 23, 2004)