A Conversation with Lawrence Lessig

The Democratic Promise of Open Source and the Patents that Might Drag it Down

Q: You write powerfully in The American Prospect about the necessity of well-constructed government regulation to support open-source software. What makes open-source a good worth protecting?

A: I think what is significant about open-source software is not so much that it is great software or that it is more powerful or more efficient than other software, but that it commits itself to a type of intellectual or public commons so that anybody can take this software and understand it and develop it and build it into their own applications the way that they want. In that way, it makes the software like scientific knowledge or like cases decided by courts. The software becomes a resource for other people to use and to build upon; it's long been the tradition of our intellectual property law to encourage ideas and information and inventions and writings to be turned over to the public in a kind of commons like this.

Q: Since we live in a profit-driven economy, why would programmers spend their time developing software when they have to make its code available?

A: Well, certainly nobody should be forced to work for free. So if open-source software meant that people couldn't make money, then very few people would be investing time and energy in developing open-source software. But the fact is that many businesses have demonstrated that in fact, open-source software does have an economic return. And in addition to the many companies that are producing versions of Linux . . . there are also companies that are developing applications or modifications of open-source software for specialized business environments that are themselves open-source software. They are not doing it out of the goodness of their hearts. And the reason they can make money is that the value provided by their businesses is service and support.

Q: Eric Raymond wrote that the General Public License (GPL) that protects the open nature of open-source software has never been tested in court. Do people still obey the GPL? And why would they do that?

A: It is true that there hasn't been a legal test to GPL, but it is not fair to suggest that GPL is vulnerable to a legal test. One reason the absence of a legal test is a good sign is that in fact GPL does rest upon a pretty good legal foundation, which the Free Software Foundation, founded by Richard Stallman, has prepared a legal defense for. One of the founders in this movement, John Gilmore, a board member for the Electronic Frontier Foundation, has offered to finance any challenge that there would be to GPL. I think the reason that people can make those promises is that they are pretty confident that GPL would survive. And I too think that . . . GPL will survive.

Q: Eric Raymond seems to imply that the reason that [GPL] has never been challenged is because that is the personality of the commons. Are you saying that just because there is no "controlling legal authority" on [the GPL], people follow it because they know that if it were brought up in court, it would still be upheld?

A: I completely agree with Eric Raymond that there is a community here that follows the GPL because it is the right thing to do. That is not the whole world. It is certainly not the world constituted by people who would like to take the software protected by the GPL, contrary to the rules of the GPL, and use it for their own purposes. It is not enough to rely on the belief that men will be angels. You also need rules to protect us against people who are not going to be angels. And I think that is what the license does.

Q: What do you think needs to happen for open-source software to become more broadly used -- if you think that that is an important goal?

A: I think first of all, people have got to become more aware of the business model of open source and also more aware of the values that open source embraces. As people begin to see the business model of open source, then, for their own economic reasons, they will become more committed to open source. But I think it is more important for people to understand what the open-source movement preserves as far as public values that are recognized and should be supported by many institutions.

Harvard University, at an early stage of development of software systems, refused to use certain operating systems that were themselves closed source, because they said an educational institution is fundamentally designed to expand knowledge, and to adopt a closed-source operating system would be inconsistent with that objective. I think it is that insight that many other public institutions ought to be considering. Universities and governments and libraries and public foundations -- all those institutions usually are aware of the importance of the commons in real space and the need for lots of public space so people can experiment and develop ideas. Those institutions have got to see that the same issues are implicated in this technological universe of cyberspace. So I think that as these institutions see this and they begin to reflect upon their own values, they will have a reason independent of any economic reasons to be adopting open-source projects.

Q: Do you think that the federal government should adopt open source, and what would the costs be in terms of staff time and training?

A: I certainly think that the federal government, from an efficiency standpoint, would gain a lot by adopting open-source systems in many of their contexts in many governmental services. I think open-source licensing is an ideal way for government to provide public resources, particularly if you think about software that can protect privacy. If the federal government could facilitate development of this software in an open-source way, then other communities and corporations could take the very same software and could develop it for their own particular uses in a way that would advance the values of privacy. So I do think the federal government has both an economic and a normative interest in adopting open-source software. On the other hand, I am not somebody who believes that it is inconsistent with the role of the government to have any closed software or that the government should ban Windows from its world.

Q: Do you think that there are other things that the government ought to be doing to promote open source?

A: Well, I think Jeff Taylor's point in the essay on [TAP Online] is a good one -- one ought to be anxious about government trying to come in and help communities do what they are already doing well. One extremely damaging form of regulation exploding in cyberspace right now is patents. I was just at a conference here in Berlin two days ago, and an attorney for an open-source company was describing a project where in order to release a certain software package, they were going to have to negotiate with 100 different patent holders for it to be released in the United States. Closed-code systems are in a better position to negotiate these patent rights than open-code systems because . . . it is hard to negotiate a license when anybody can take the basic fundamental structure. This is another reason to be anxious about the explosion of patents in cyberspace because one consequence could be the destruction of the open-source movement. And for those of us who are skeptical that patents are doing any good, the fact that it would do this harm is just another reason to be concerned about patents.

Q: Most of the time, the argument in favor of patents is that people wouldn't invest their time and money in developing new things if they might be stolen.

A: I agree with this argument as a possible argument, but the important thing is not to let empirical claims become a priori truths. The fact is that we have seen an extraordinary explosion of innovation and effort in cyberspace, absent any of these patent protections. To the extent that people will not invest their time and energy in developing things unless they can be guaranteed some form of return, I offer in evidence the Internet. And the Internet is proof of the contrary assertion that, in fact, in a context of shared information and shared productivity, people do produce and invest in a way that does give them a return but not one that needs patent protection. What we should do before we muck up the space with all these costly patents is investigate whether or not they are necessary.

Q: You protest a provision of the Digital Millennium Act that prohibits mechanisms used to foil technology that protect anything that is copyrighted [the anti-circumvention provision], arguing that it gets in the way of "fair use." Wouldn't the fair use argument create a loophole through which netizens can listen to music, watch movies, and read literature without paying the people who toiled to produce them? And doesn't that discourage creativity in the end?

A: Copyright owners sold books, movies, and music to people, and the law protected copyright holders' rights and also protected individuals' rights. Individuals had a right to fair use to material -- even if they hadn't purchased it -- and they could make copies and reproduce the material if they wanted, independent of copyright owners' rights. Now, one thing that the copyright law did not do was give the owner a right to control the use of his copyrighted material . . . and there wasn't such a technology to control the use of this copyrighted material perfectly.

Now, what cyberspace has done is create the possibility for owners of copyrighted material to control perfectly the use of their copyrighted material. The first thing to note is that cyberspace has given copyright holders more power over protected material than they had before. Copyright law has always tried to strike a balance between owners and the public -- not to guarantee owners perfect control, but to guarantee them enough control to give them an incentive to produce what they produce. The fact that technology is giving them more power than they had before should raise a question in anybody's mind who's concerned about balance in copyright law and whether holders are getting too much power.

The Digital Millennium Copyright Act anti-circumvention provision is, in my view, a perfect example of how the law is piling on in the sense that the law is adding to the power that copyright owners have by virtue of technology. The law is not allowed to eliminate fair use. When you use law to protect private technology, it seems to me the law should be as conditioned upon the values of the First Amendment as copyright law is. If what follows from that is that copyright owners don't have perfect control of their copyrighted material, then that is a great thing, because that is exactly what the balance was before cyberspace came along. Copyright has never been a law intended to give copyright owners perfect control over the use of their material, and cyberspace shouldn't give them that control.

Q: Do you think that with the ease with which it is possible to copy digital music [etcetera] that it transfers the power too much in favor of the public?

A: It could, but the technology can avoid that problem without also giving the copyright holders perfect control over the content. So I don't
believe that people should have the right to send
10,000 copies of their CDs to their friends. I think that is theft.

Q: But do you have to catch each person individually who does it?

A: No, you can have technologies that make it possible to trace back to a particular person -- to identify who the pirate is and deal with the pirate. But the extremely important fact not to miss in these cases is what [happens in many of them is] not piracy. [Take] the DcSS cases with the DVD movies. DcSS makes it no easier than it was before to copy a DVD movie and distribute it illegally. All it did was make it possible for that movie to run on the Linux operating system. That development is not about enabling illegal copying; it's about playing legal copies on a different operating system. So [that is a case] where the actual hack is not about piracy. It is about enabling usage that is perfectly consistent with copyright rights and that the copyright law grants people.

Q: Considering the Microsoft verdict and other developments, what do you think the future of open-source software is?

A: I think the future of the open-source business is extremely bright, because people will see that there is great value to having competition in servicing their software, and the open-source movement will give them that. I think that the future of people coming to understand the value of transparent technology -- which is what open-source software is -- is also extremely bright. I think people are beginning to understand how important the code of cyberspace is in their lives as people become more and more anxious about the way software can snoop on their privacy and report data about them and report facts about them to either companies or the government. They are going to want technology that is transparent. And open-source technology will do that for them. So I think that as people see the value of that much more clearly, the future will be one where they will demand transparent technology much more effectively.

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