James Boyle: Give me liberty and give me death?

By James Boyle © 2004  Creative

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.

In this 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"

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