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.