October 26, 2002  ·  Lessig

This letter by Adam Smith on behalf of the “New Democrat Network” asking Cybersecurity Czar Richard Clarke to avoid GPLd software deserves a response. Here’s a short one by me. And if you agree, then you should respond here.

The essence of Congressman Smith’s argument is that the government should not fund basic research that results in GPLd code because it “prevent[s] companies from adopting, improving commercializing and deriving profits from the software.” GPL does this by demanding that any modifications of GPLd code that are distributed must be distributed with the source and that makes it impossible for companies to establish “commercial IP rights in any subsequent code.”

The trick in this argument is to make it sound as if it is “companies” versus GPL, or the “private sector” versus RMS. But of course there is no such division. There are, no doubt, some companies that because of their business model, cannot adopt GPLd code. Microsoft is one. But there are plenty of other “companies” who have no trouble dealing with GPLd code—IBM is one. The difference is therefore not between “companies” and the GPL. The difference is between companies willing to pay the price of GPLd code and those not willing to pay the price of GPLd code. Giving up proprietary control is the price GPLd code demands, just as all-the-money-in-the-world is the price Microsoft would demand for similar access to its OS source. Some can pay that price; some cannot.

So if Smith is being principled, then properly stated, Smith’s principle comes down to this: That the government should not fund any research that results in code that some companies could not, consistent with their business model, adopt.

If that is his principle, then it follows that the government can’t fund projects that result in proprietary code (since there are some entities (say, the Free Software Foundation) that can’t, consistent with their business model, accept that code), or more radically, it means that the government can’t fund research that results in patents (since there are some business models that can’t pay the price of a patent). The only research the government could support, on this theory, is research that produces work in the public domain.

That is an interesting but radical principle. The government funds all sorts of research that results in patents, and in proprietary code. So the real question for Congressman Smith is this: Does he believe the government can’t support proprietary or patented work if he believes it can’t support GPLd work? Is he advancing a principle, or just FUD about GPL.

If this is not a principle, then why he is speaking for the New Democrat Network. I understand why the congressman from Microsoftland pushes legislation to protect Microsoft. But it is wrong to link that pork with the NDN.

  • Peter Cordes

    Note that _most_ corporations don’t sell proprietary software. Most corps are not in the software industry at all, and only use software. For software they develop for their own use, they have little reason to avoid the GPL. The group of corporations who might want to do something with gov’t funded software includes more than just companies who develop and support Free software for others to use.

  • Eric Lyons

    I find it troubling that a government — whose funding comes from _me_ — would produce something to which I have either no or restricted access. Excepting cases of national security, isn’t a government licensing mechanism really just a specialized tax?

    Note that this isn’t to say that a government patent isn’t a bad thing; on the contrary, I think it’s an excellent way of keeping citizen-funded R&D in the public domain.

    But that’s not how it seems to work.

  • John Juergensen

    IBM just announced a $10 BILLION commitment to their “On Demand” computing strategy, a big part of which is predicated on open-source software. No doubt they’re making this commitment in anticipation of the extreme difficulty of earning a profit due to GPL’d code.

    Sheesh, this would in itself seem a prima facie rebuttal to Adam Smith’s concern.

  • http://www.tinyvital.com/blog John Moore

    The problem with government funding of GPL is the reduction of the freedoms of its citizens to use the software. They can only use it in one way – with the “viral” GPL license.

    On the other hand, the current practice of providing public domain code precludes neither subsequent GPL licensing nor proprietary licensing. It is the maximal freedom approach. For example, an open source group (GPL, BSD, or whatever form of license) may base a project on the code. At the same time, a closed source company may also pick it up and sell (and hopefully enhance) it.

    A lot of software simply doesn’t make it into the open source world because it is not worth it, given the open source “business models.” Either there is no profit in it or there is no appeal to working on it. This software, typically specialized, will likely be abandoned unless companies can add proprietary value and distribute the result in a closed source mode.

    Other software will support the open source process, and some may thrive in both environments.

    It is important to recognize that government funded code is likely to be undergeneralized, hard to install, not very friendly and perhaps not very portable. Much of the best software ideas come from academic research, but the code and its packaging are likely lacking. Sometimes the only way the software will provide maximal (or any) utility in the private world is for a private company to pick it up and do the work, and reap their reward through closed source. Examples of this include popular commercial math packages used by many academics.

    Even if the binaries are simply placed in a nice box and put on a store shelf, value is added or nobody buys it. In this case, the company may make an obscene profit, but what’s the harm?

    I have other comments about this on my blog although they are intentionally of a more polemical nature.