Post by Southern Tasmania on Nov 5, 2004 10:04:20 GMT
The following article by Epstein and the response by Reynolds are found at news.ft.com/cms/s/78d9812a-2386-11d9-aee5-00000e2511c8.html
Richard Epstein: Why open source is unsustainable[/u]
By Richard A. Epstein
Published: October 21 2004 20:13 | Last updated: October 21 2004 20:13
James Boyle: Give me liberty and give me death?
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, such as Tom Bell of Chapman Law School, 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 - which has already generated some real successes in both operating systems and various kinds of servers - offers its own distinctive institutional response. The movement, whose principles have been expertly analysed by James DeLong of the Progress and Freedom Foundation in his paper “The Enigma of Open Source Software (Version 1.0)”, 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 operation 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.”
Does open source software represent a viable alternative to the competing forms of proprietary software, which is licensed only for a fee? In answering this question, first note that open source software relies on the very private property regime that its supporters, most noticeably Richard Stallman, disdain on moral grounds. As DeLong rightly notes, the GPL does not place open source software in the public domain, where any one may use it as he pleases. 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. The apparent intention of the provision is to “infect” that new program so that all of its content becomes open source software subject to the GPL. In principle, the entire Microsoft operating system could count as “the work” that becomes open source because a few lines of open source code have been incorporated into it by inadvertence. I doubt very much whether courts will tolerate that extreme remedy, if they enforce the clause at all. Just imagine if Microsoft insisted that it had exclusive rights to any derivative work that incorporated its code! In both cases, it is much more likely that courts would allow the incorporator to remove the offending lines of code, or to pay some damages for the improper inclusion.
Second, the clause might only bind those people who know that they are using open source code. Suppose, for example, that A uses some open source code in his program, which is in turn used by B. If B has no knowledge of how A cobbled together his program, then the GPL may be read not to apply at all. Indeed, even if B knew of the provision, the GPL might not apply on the ground that it constituted an illegal restraint on alienation that everyone is free to ignore. One way or another, courts are likely to counteract the creeping imperialism of the GPL licence. Once the contract protection lapses, then the open source movement is left only to its copyright remedies, which are likely to prove far weaker.
The difficulties with the open source movement , moreover, go deeper than the problems with a single provision of the GPL. The open source movement shares many features with a workers’ commune, and is likely to fail for the same reason: it cannot scale up to meet its own successes. To see the long-term difficulty, imagine a commune entirely owned by its original workers who share pro rata in its increases in value. The system might work well in the early days when the workforce remains fixed. But what happens when a given worker wants to quit? Does that worker receive in cash or kind his share of the gain in value during the period of his employment? If not, then the run-up in value during his period of employment will be gobbled up by his successor - a recipe for immense resentment. Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company. But once that is done, then the worker commune is converted into a traditional company whose shareholders and creditors contain a large fraction of its present and former employers.
The bottom line is that idealistic communes cannot last for the long haul. 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.
But suppose this analysis is wrong. One clear policy implication remains: this novel form of business association should succeed or fail on its own merits. The do-or-die question is whether open source offers a low cost solution to particular problems. Ordinary companies will make just those calculations, but government agencies may be swayed to take a different tack, as has been suggested by a number of EU studies. That temptation should be avoided. Governments are bad at forcing technology by 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. 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 to all citizens demand no less.
The writer is the James Parker Hall Distinguished Service professor of law at the University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution
James Boyle: Give me liberty and give me death?[/u]
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.
Richard Epstein: Why open source is unsustainable[/u]
By Richard A. Epstein
Published: October 21 2004 20:13 | Last updated: October 21 2004 20:13
James Boyle: Give me liberty and give me death?
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, such as Tom Bell of Chapman Law School, 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 - which has already generated some real successes in both operating systems and various kinds of servers - offers its own distinctive institutional response. The movement, whose principles have been expertly analysed by James DeLong of the Progress and Freedom Foundation in his paper “The Enigma of Open Source Software (Version 1.0)”, 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 operation 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.”
Does open source software represent a viable alternative to the competing forms of proprietary software, which is licensed only for a fee? In answering this question, first note that open source software relies on the very private property regime that its supporters, most noticeably Richard Stallman, disdain on moral grounds. As DeLong rightly notes, the GPL does not place open source software in the public domain, where any one may use it as he pleases. 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. The apparent intention of the provision is to “infect” that new program so that all of its content becomes open source software subject to the GPL. In principle, the entire Microsoft operating system could count as “the work” that becomes open source because a few lines of open source code have been incorporated into it by inadvertence. I doubt very much whether courts will tolerate that extreme remedy, if they enforce the clause at all. Just imagine if Microsoft insisted that it had exclusive rights to any derivative work that incorporated its code! In both cases, it is much more likely that courts would allow the incorporator to remove the offending lines of code, or to pay some damages for the improper inclusion.
Second, the clause might only bind those people who know that they are using open source code. Suppose, for example, that A uses some open source code in his program, which is in turn used by B. If B has no knowledge of how A cobbled together his program, then the GPL may be read not to apply at all. Indeed, even if B knew of the provision, the GPL might not apply on the ground that it constituted an illegal restraint on alienation that everyone is free to ignore. One way or another, courts are likely to counteract the creeping imperialism of the GPL licence. Once the contract protection lapses, then the open source movement is left only to its copyright remedies, which are likely to prove far weaker.
The difficulties with the open source movement , moreover, go deeper than the problems with a single provision of the GPL. The open source movement shares many features with a workers’ commune, and is likely to fail for the same reason: it cannot scale up to meet its own successes. To see the long-term difficulty, imagine a commune entirely owned by its original workers who share pro rata in its increases in value. The system might work well in the early days when the workforce remains fixed. But what happens when a given worker wants to quit? Does that worker receive in cash or kind his share of the gain in value during the period of his employment? If not, then the run-up in value during his period of employment will be gobbled up by his successor - a recipe for immense resentment. Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company. But once that is done, then the worker commune is converted into a traditional company whose shareholders and creditors contain a large fraction of its present and former employers.
The bottom line is that idealistic communes cannot last for the long haul. 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.
But suppose this analysis is wrong. One clear policy implication remains: this novel form of business association should succeed or fail on its own merits. The do-or-die question is whether open source offers a low cost solution to particular problems. Ordinary companies will make just those calculations, but government agencies may be swayed to take a different tack, as has been suggested by a number of EU studies. That temptation should be avoided. Governments are bad at forcing technology by 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. 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 to all citizens demand no less.
The writer is the James Parker Hall Distinguished Service professor of law at the University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution
James Boyle: Give me liberty and give me death?[/u]
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.
. Get on board!
