October 22, 2002  ·  Lessig

Dave bravely (given the excitement about Mitch’s latest contribution) defend’s Don Park‘s concern that the Open Source Applications Foundation will fuel an “erosion in the sense of value for software.” That is an important and valid concern, but it needs to be kept in context.

The more I try to understand the resistance of good-souled sorts to open source or free software, the more it reminds me of the resistance by good-souled sorts to limits on copyright in, e.g., music. Sure, there are institutions you would anti-trust that oppose free software (msft), just as there are institutions that should be anti-trusted that oppose limits on copyright in music (riaa). But the puzzle is to understand the valid and serious concerns of those whose motives one should trust — Dave Winer, e.g., in software; Jenny Toomey’s Future of Music Coalition, e.g., in music.

Park’s statement helps, but it helps by isolating a legitimate, yet distinguishable, concern.

I don’t see how anyone could on principle oppose having the source code for a program available. Dave insists it’s not necessary, but that’s a very different point. It’s also not necessary to have the formula for a certain chemical compound (because one could always reverse engineer it) (I know squat about chemistry, so that might be complete bs), but just because it is not necessary does not mean it would not help. All things being equal, having the source code helps for many purposes. (“Many,” not all; helps, not “necessary”). So opposition to having source code out there must be grounded on the view that source code also hurts, and that its harm outweighs any benefit.

So how might it hurt?

Well, one way it might hurt is by making it harder for companies to behave strategically against their competitors. That was the charge against msft: that it used its power over its code to play games that illegally harmed its competitors. That power was enabled in part by closed source code. That’s not to say one couldn’t reverse engineer the code — Ed Felten did it. But the ability to reverse engineer is different from the access to the source.

I take it no one opposing free software would offer that as a justification, and certainly, Dave-type opposition is not grounded in that reason.

That leads to a second reason to oppose open or free software — that it would destroy or change the software-writing business. This seems to be Park’s concern: If everyone expects code to be free, then the ability of certain sorts to get paid for writing code is threatened. Not all coders, but some. The people who would get paid for writing software would be the people who sold devices (e.g., Apple); the ability of independent sorts to write and sell software would in turn then be weakened.

Notice the parallel argument existed in the early days of the debate about copyright and the net. (Barlow‘s amazing article is still a powerful read on this.) In that debate, some suggested the answer was for musicians to sell t-shirts, or spend more time on tour. Understandably, that response didn’t make musicians very happy.

But I think the key in both contexts is first to isolate the point, and recognize what drives it. If there were a way to assure coders — especially independent coders — got paid even though the source of their code was open, then it would be hard to oppose open code. And while it might seem odd to imagine how that is possible, we should recognize that our economy already has about a billion ways in which it secures payment to creators without locking up the creativity. Some of those would be bad (moving music back to the patronage system, for example); but not all of these would be bad. And if we could devise a way for coders to get paid, including coders independent of companies like IBM, while allowing the source code to be free, then this legitimate concern of good-souled skeptics could be met.

Professor Terry Fisher is devising such a technique in the context of music. Pester him to publish, because it is truly brilliant. Equivalent geniuses should be crafting a similarly brilliant solution for code.