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All content by Kyle E. Mitchell, who is not your lawyer.

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March 4, 2019

Back to IPthe copyright giant has a policy

The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

— United States Constitution, Article 1, Section 8

How should society support creation and maintenance of public knowledge goods in the private sector? The obvious answer: intellectual property law. The public policy behind modern IP law gives creators of valuable ideas and expressions rights to make others pay for licenses, so they can recoup costs and keep up the good work.

In the case of open source software specifically, the obvious way to fund developers is to pay them for copyright licenses. The government is so sure of this general solution to the sustainability problem—making nonexcludable ideas excludable—that it applies to qualifying software by default, like it or not. Open source software developers make software open-source by reversing those copyright and other IP rules, knocking out the supports the law provides.

Of course there’s an open source sustainability problem. Open source declines society’s official solution to the sustainability problem. Opting out of the solution is opting back in to the problem.

None of this is to say that the present policy justification and practical, political history of intellectual property laws have always aligned. They haven’t. Nor does the current policy entirely jibe with reality. Intellectual property rights allotted to individual creators by default often end up belonging to employers and clients instead. The exception of corporate ownership swallows the rule of individual creator empowerment for commercially viable work. Overzealous strengthening of IP rights goes too far, upsetting the balance of social and private benefit.

Many open source activists reject the idea of treating code, and especially patentable ideas implementable in code, as property. It’s easy to find evidence of the shallow, property-as-panacea thinking they criticize. But it’s also wrong to criticize IP for making ideas into property, and stop there. The law makes ideas into property for a reason. In open source terms, that reason is sustainability. Properly understood and applied, intellectual property is a means to sustainability, not an end in itself. By all means criticize IP rules when they fail to achieve their ends. Or offer a superior alternative.

Making ideas into property isn’t the only way to fund or encourage work. Some projects, and some creators, don’t need money or encouragement, anyway. Others, especially businesses, have different compelling reasons for creating or funding open source, like inducing strategically beneficial market distortions or enhancing their names and esteem. In exceptional cases, support based on enlightened self-interest, like donations, can suffice, at least for a while. But enlightened self-interest remains in short supply.

There are many reasons to believe in open source, to see it as a novel and exciting exception to rules once seen as firm. Many folks contribute to, and identify with, open source as an alternative to, or rejection of, markets, business firms, industrial production methods, and the modern IP “asset” mentality. These folks marvel at Linux’ ability to challenge, and eventually outcompete, server operating systems from established, traditionalist, hidebound software companies.

When I speak to these open source contributors about sustainability, I often find them in a double bind.

On one side, their view drastically constrains the field of viable alternative solutions to the sustainability problem. Public-private licensing is out. Open core is out. Delayed open source release is out. All of these merely mix some element of IP-based exclusivity in with partial or eventual open source release.

On the other side, they have to confront the fact that industry has learned from, and arguably coopted, a selective sampling of open source tools and techniques. Open source has “won” by demonstrating good service to the kind of large and growing business firms some hoped it would supersede. In many areas open source is the dominant development culture of software business, and not because business capitulated, but because open source assimilated. It’s the New Beetle era, not the Old Beetle heyday.

Escape from that double-bind has almost always meant encouraging developers to engage in a kind of business, adjacent to their open source work, that for whatever reason falls outside the scope of open source expectations. That’s a hack. Those approaches conflict, at a higher level, with open ideology. Provide hosting. Offer the software as a service. Sell paid support. Set up a trademark licensing or certification program.

Often, these opportunities stand just as available to those who don’t contribute to open source as to those who do. That subjects those who rightly deserve support to competition from free riders, again. Where opportunities do favor contributors, their advantage often boils down either to an exclusive right of some other kind, like a trademark, a certification, or established market position, or to an unaccounted deduction from open source. It’s far easier to sell integration, support, and training, for example, by keeping publicly available documentation for an open source project weak, outdated, or nonexistent. It’s far easier to sell hosting or implementation when hosting and implementation remain hard.

The challenge to property exceptionalists remains: What alternative to exclusivity can they offer, to achieve the same purpose as intellectual property laws? Or do they merely accept that open source will accumulate remainders and contributions from neophytes, the obsessed, and the well-off? That those in need of support shouldn’t expect any, but instead write proprietary code for cash, and pray for a rare fluke of charity?

An unsustainable challenge to incumbent business is no real challenge at all. Is open source a viable, self-sufficient alternative to those models of software creation and distribution, or merely a reaction—and increasingly an accessory—to business as usual?

Your thoughts and feedback are always welcome by e-mail.

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