Professor Richard Epstein has an op-ed in the Financial Times on the unsustainability of open source software. What exactly is open source software? Open source software is basically free software – it can be used, distributed, and modified freely. The source code of the open source software is also freely accessible to the public. Proprietary software, on the otherhand, is the type that most of us are used to – it is distributed subject to a licensing fee and the source code is not available to the public.
For those of us who are not versed in computer language – what exactly is source code? Mathias Strasser has written a paper (“A New Paradigm in Intellectual Property Law? The Case Against Open Sources”) in which he goes over the background of available legal protection for source code. Strasser summarizes the differences between source and object code in the following way: “First, while source code is intelligible to human beings, object code is not. Second, unlike source code, object code is directly executable on computers. Third, it is virtually impossible to recreate the source code of a piece of software on the basis of its object code.” One way in which source code gets legal protection is through copyright law because “source code is [] an expression of an idea, the idea being the algorithm on which it is based…, and the expression being its representation in a high-level language on a tangible storage medium…” The Open Source Movement believes that “software should not be subject to legal protection at all, or, in open source terminology, software should be free or ‘open.’”
In Professor Epstein’s op-ed, he discusses how these Open Source advocates achieve their goal of free software through a General Public License (GPL). These provisions say something to the effect of: “You must cause any work 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.” Professor Epstein states that there are two weaknesses to the open source. One is that the GPL provision has not been tested – specifically, it “does not specify the appropriate remedy when some portion of the open source code is incorporated into an otherwise proprietary program.” Second, the clause may only bind those people that know they are using open source code. Professor Epstein then goes on to compare the open source movement to a workers’ commune in order to illustrate its unsustainability:
“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 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.”
In the end, open source, like idealistic communes, cannot continue to exist. Professor James Boyle from the Duke University School of Law responds to Professor Epstein’s piece by basically saying that Professor Epstein’s fears are exaggerated. Professor Boyle then goes on to present counterarguments. It is interesting, but I do not find it very persuasive.
We know that source code is protected through copyright law. By providing this protection, the creators have incentive to further create and improve upon existing programs. In an “ideal world,” open source sounds like a very good idea. I am sure there are people out there that create source code for the sake of creating source code. This sounds more like what academics would do though. Academics do what they do to advance the science without any expectation of significant monetary gain. In a world where technology changes by the nanosecond, open source will not likely be able to compete with proprietary software, in which millions of dollars have been invested into its development. The incentive provided by copyright law (and trade secret and patent) will cause proprietary software to advance at a much faster rate than open source.
For a very detailed look at the case against open source, see Mathias Strasser’s paper.
I think before you can criticise something, you must first understand it. And there is a strong indication that you don't understand what the GPL stands for, or means.
If you DO understand what the GPL actually means, you will realise that Epstein also does not have a clue as to how the GPL really works. Would you trust someone's opinion on something which they know nothing about, or have a mistaken or incomplete understanding about?
It is ridiculous to say that (Free as in Speech) Free & Open Source Software (F&OSS) do not use copyright protections. The most high-profile F&OSS license, the GPL, relies on copyright law. Without copyright law, the GPL would not be able to exist.
How does the GPL work? Let us think of a hypothetical situation. For example, someone, for reasons of their own, decide to release the source code of a rudimentary piece of software under the GPL. At this point, anyone can download the source code. But what the license states, is that when you download the source code, you receive ALL RIGHTS that the original copyright owner has, but in return, you cannot deprive anyone else of the same rights to the source code.
What does that mean? That means that if you make changes or modifications to the source code, you must in return, release those changes under the GPL as well.
This is not "idealistic" communism or socialism. This is very much a capitalist idea. Quid pro quo, simple as can be. The price you pay for the freedom to do anything you want to the source code is that in return you must allow others to do the same to your contribution. The price may not be in dollars, but it is still quid pro quo.
So why will the GPL succeed? Won't the people have less of an incentive to contribute if they are compelled to release their contributions to the public?
In my opinion, the main principle underpinning the GPL is quid pro quo. If you obtained something (source code), you must give something back (source code) if you make changes to the source code. This is no different from any other proprietary license: when you purchase a license, you pay money, and often the licenses have a multitude of restrictions.
Secondly, the comparison between the GPL method of production and a worker's commune is fatally wrong. In a worker's commune, the product of work is a physical object that is both rivalrous and excludable. This means if someone in a worker's commune quits, they lose any way of obtaining the benefit of their work, which goes to their successors, as noted by Epstein.
The fact is that source code, its executable binaries, and all further improvements, are non-rivalrous and non-excludable. The GPL is a mechanism through which this non-rivalry and non-excludability becomes a positive externality. The GPL ensures that any contributed improvements to the code becomes available to anyone.
What this means is that if anyone decides to stop contributing code, they STILL have the benefit of using the improvements in the code that they have made, and in addition, any future improvements to the code that other people have contributed. Would the continuous improvements and upgrades not count as "value-in-kind" to the contributor? This neatly debunks Epstein's argument about the lack of value that contributors can obtain.
Lastly, the F&OSS method is more efficient than proprietary methods of making software. How so?
If you ever take a look through Sourceforge, you would notice that the majority of F&OSS are started by people who wanted to solve a problem that they faced in the course of their lives. In hacker terminology, its called "scratching your own itch".
And the most passionate and active contributors to any project often do so simply because they use the software themselves, and therefore have a vested interest in making the best possible software.
If you consider that the core of the programming team consists mainly of the above 2 types of people, you would realise that the idea of F&OSS collaborators being made up only of academics is a myth. F&OSS programmers are people who help themselves, their incentive in developing the software is because they use the software themselves. The fact that releasing their source code under the GPL helps other people is a side issue. They do so because it costs them nothing, but in return they get a whole lot more for helping others.
A group collaborating to create and improve a tool that they would ALL use is in itself a a value proposition in so many ways: they do not have to spend money on proprietary software, they have the freedom to make any changes that suit their needs, they improve their programming skills through practice, mentorship and looking at other people's code, and lastly because the source is open, credit will always be given where credit is due. This means that the most capable and skilled programmers will never be wont of a job, as everyone will know who they are, and their code also becomes part of their CV.
So imagine this: a group of people decide to work on a project to improve a tool that they themselves use. Therefore they want to make it the best possible tool. And since it costs them nothing to let other people use the tool for free, they do so. In return, they ask that if other people improves the tool, they too in return should be allowed to use the same improvements, which should also be offered to anyone for free.
Can you see how it works now? Money is only a store of value. Money has no value in itself. Money is only as useful as what it can buy. Open source works because a transaction occurs without requiring money as a medium of exchange.
And this leads me to the last point. You claim that there is no way in which F&OSS can compete with proprietary software which has millions invested into development. Again, I would like to point out that money is merely a form of measurement. Massive infusion of dollars is no guarantee of results.
Imagine this: A company working on software is restricted by resources. There are capital and labour expenditures to consider, such as programmer wages, software licenses and hardware.
A F&OSS project have a different set of rules. Any number of people can join. They contribute as and when they want to. There is no fear of the project running out of money and going bust. There are no capital or labour expenditures, except for the hardware and software that the individual contributors pay for themselves, and maybe some webspace and bandwidth for the group. And because the project is GPL, even if programmers quit, any other person can take up the reins and continue where they left off.
I think you merely have to look at real life examples to know that you are completely wrong about this. Linux is capable of running almost every electronic device under the sun. Windows is restricted to PCs. This means Linux is infinitely more flexible in its construction. This also means that people using Linux can tailor it according to their needs, and not the other way round, which is people having to upgrade whenever a new version of Windows comes out.
Mozilla and Firefox have been gaining marketshare at the expense of IE. When was the last time IE had any new features? Firefox is update daily. Keep in mind that IE comes bundle with Windows.
I apologise for this lengthy comment, but I really felt that I must address the inaccuracies in your understanding.
Posted by: Han | October 31, 2004 at 10:53 AM