James Boyle: Give me
liberty and give me death?
By James Boyle © 2004 
Published: Financial Times Online
October 29 2004 (The Financial Times
is enlightened enough to agree that I can keep copyright in my articles - and
thus share them under the terms I choose. That is one of the key reasons I write for them. Please be sure to credit them if you copy or
quote this article and look at www.ft.com/techforum
for some of the other interesting work they publish)
The price of liberty
is death, at least so far as free software is concerned. Or so goes the
argument in Richard Epstein's column, Why open source is unsustainable". It is a
characteristically provocative title, but I am unconvinced.
The article gives two
main reasons for open source's doom. The first is an attack on the vagueness
and, somewhat paradoxically, the imperialism Professor Epstein sees in the
General Public Licence, the licence common to most free software" and much
open source software." Prof Epstein claims that the licence is silent on
certain key issues, vague on others and likely not to be enforced by the courts
in certain cases. I disagree with most of his arguments, and think the fears
are exaggerated. An extended analysis would require a law review article, not
an Op-ed. How is a reader to judge whether there are deep flaws in the licence?
Two handy guidelines suggest themselves. Listen to the market, and assume
judicial common sense.
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. (I imagine an absent-minded Genghis
Khan.) Unenforceable licences are also unpopular. In his scholarship, Prof
Epstein has pointed out eloquently that the market is the best information
processing system we have: we should assume that it is incorporating all
available information. If we apply his principle here, it indicates that the
market has weighed his fears and found them wanting. In my view, 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. As for the implication that the intent
of the GPL's authors or users is to infect" proprietary code, I think the
evidence runs exactly to the contrary. So far as one can tell from their words
and deeds, the authors of the GPL want passionately to avoid the entanglement
Prof Epstein describes. They certainly take pains to specify the ways that one
can avoid problems, including distribution of separate programs on the same
disk, appropriate ways to use proprietary software libraries" and plug-ins,
and so on.
Assume judicial common
sense
Another guideline is more a matter of legal culture. To the extent that there
are problems with the GPL, they are unlikely to produce either the vagueness or
the imperialism Prof Epstein describes because, as he concedes, 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. Despite
occasional examples to the contrary, courts are fairly commonsensical
institutions, and their decisions are unlikely to bring about the legal
apocalypse for either side of the proprietary hedge. The market
valuations that I mentioned before probably reflect that point.
But legal uncertainty
is only part of the reason that Prof Epstein thinks that open source is
unsustainable. His key criticism is that idealistic communes cannot last for
the long haul." Well, the Catholic Church is also a relatively idealistic
institution, based on canonical texts that are subject to conflicting
interpretations. It is doing pretty well so far. Presumably the key word here
is commune." But is open source a commune", holding tangible property in
common and excluding the rest of us, worrying about how to split up the
proceeds if someone leaves because of bad karma? Or is it a community, creating
and offering to the entire world the ability to use, for free, non-rival goods
that all of us can have, use and re-interpret as we wish? In that kind of
commune, each of us could take all the property the community had created with
us when we left, and the commune still be none the poorer. Copying software
isn't like fighting over who owns the candles or the VW bus.
How about idealism?
Prof Epstein himself is careful to point out that it is by no means clear that
the production of open source software is based solely on the idealism
of its creators. 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. Prof Epstein conjures up a central committee" from which insiders
will be unable to cash out - a nice mixture of communist and capitalist
metaphors. All governance systems - including democracies and corporate boards
- have problems. But so far as we can tell, those who are influential in the
free software and open source governance communities (there is, alas, no
central committee") 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.
Prof Epstein is
careful to note that he might be wrong about the future of open source, but he
concludes with an admonition nonetheless. Even if he is wrong, this
novel form of business association should succeed or fail on its own merits."
It should not be aided by government agencies playing favourites." 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." Given that initial if", I think this is a reasonable point.
If open source software is less effective, government should not be investing
in it. (Some people assume it will always be superior: I do not.) The point, of
course, is that 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.
The UK, for example,
concluded last year that open source software will be considered alongside
proprietary software and contracts will be awarded on a value-for-money basis."
In fact, in a serendipitously timely report about British pilot study trials
issued a few days after Prof Epstein's column, the Office of Government
Commerce had this to say. Open source software is a viable desktop alternative
for the majority of government users" and can generate significant savings...
These trials have proved that open source software is now a real contender
alongside proprietary solutions. If commercial companies and other governments
are taking it seriously, then so must we." Sweden found open source software to
be in many cases equivalent to - or better than - commercial products" and
concluded that software procurement shall evaluate open software as well as
commercial solutions, to provide better competition in the market." Sounds
sensible to me.
I think Prof Epstein's
neutrality principle is a little narrow. There are many benefits to society as
a whole that governments could rationally factor into their decision in picking
open software - including creating a social good that other citizens can share,
and producing specific competition (lower software prices for my department)
and general competition (lower prices for the society as a whole.) But let us
say that we adopted his principle. Would it change state purchasing policies? I
don't think so, for the reasons given above. What would it change? There, I
think the answer is clear. The key implication of a principle of neutrality
would be this; it would 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. Where do I sign?
The writer is 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