Code Breaking: Open-Source, Closed Minds

There’s something obvious to anyone close to technology today: Nonproprietary technology helps proprietary enterprise.

For example, the global positioning system was set free for commercial development by Ronald Reagan in the 1980s. The consequence was an explosion of commercial technologies building upon GPS. The National Weather Service makes a vast amount of this data freely available. Literally thousands of enterprises use these data for commercial and noncommercial purposes. The U.S. government makes GPS-spawned mapping data available as well. That’s why MapQuest can happen easily in the U.S., but only much more slowly in the rest of the world.

And let’s not forget the Internet itself, and the suite of technologies that are associated with it—from the basic protocols of TCP/IP, to free and open-source software such as Sendmail and Apache. These have enabled an explosion of commercial development, which builds upon nonproprietary technology.

The point in each case is not that we’d be better off without proprietary technology, or without property at all. The point, instead, is one that has been obvious since the birth of our republic—that a balance between proprietary and nonproprietary property is better than either extreme. As Bradford Smith, general counsel of Microsoft Corp. has written about software, “Both open-source and commercial software are integral parts of the broader software ecosystem.” Either alone, I might add, would produce a weaker “software ecosystem.”

These points would be too obvious for readers of this magazine, except for an extraordinarily stupid debate that has spun out of control in Washington, D.C. The source of this silliness is an obvious competitive incentive and a sloppiness in thought which apparently makes our government oblivious to the obvious. “Stupid,” “silly,” “sloppy” and “oblivious” are stronger words than I like to use. But I have seen few arguments more deserving of such straight talk.

The debate began in July 2003, with a proposal presented to the World Intellectual Property Organization, asking that it convene a meeting to discuss “open and collaborative projects to create public goods.” That proposal had the support of a broad range of interests (including, least important but for full disclosure, me). It suggested that WIPO might consider the GPS or the Internet protocols examples of “open and collaborative projects.”

The proposal also included free and open-source software as an example of an “open system.” And it was FOSS, in turn, that ignited Microsoft’s increasingly effective lobbying machine. For though Microsoft is happy to talk about a balanced “software ecosystem” in the pages of academic policy journals, the idea of an international meeting where nonproprietary software would be on stage terrifies the company. As Microsoft has acknowledged, its greatest competitive threat comes from free and open-source software—and most important, the GNU/Linux operating system. As the trend among world governments is to increasingly demand open, nonproprietary technologies for their own technological needs, Microsoft is keen to avoid fueling that trend.

According to The Washington Post, Microsoft’s lobbyists began to push the U.S. government to veto the WIPO meeting. And when that push had its effect, one hapless government official revealed—through her apparent ignorance—just how valuable such a meeting would have been.

When asked why the United States had opposed the WIPO meeting, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, told the Post, “Open-source software runs counter to the mission of WIPO, which is to promote intellectual property rights.” She added: “To hold a meeting, which has as its purpose to disclaim or waive such rights, seems to us to be contrary to the goals of WIPO.”

Now, there are many reasons why one might have opposed the WIPO meeting, but the reasons stated by those opposing it betray simple ignorance of the facts. First, they are just flat wrong. Neither “free” nor “open-source” software is in the public domain. Both depend on fundamentally strong intellectual property rights to assure that each remains free or open sourced.

Second, why would it be WIPO’s sole purpose to maximize intellectual property rights? Is WIPO against generic drugs? Is it a failure of WIPO’s objectives that patents don’t run for 100 years?

Third, and most troubling, why would it be “contrary to the goals of WIPO” for intellectual property rights holders to disclaim or waive their rights? Isn’t that for them to decide? Individuals have the right to choose what they want to do with their property rights. Does Bill Gates undermine the private property system when he gives $20 billion to do good in the world?

Ms. Boland is not really responsible for this silliness. It is, instead, a kind of McCarthyism that increasingly infects any debate about intellectual property in Washington. Anyone who questions extremism in IP is branded a pirate. Anyone who promotes a different way of using IP is considered anti-IP. There is no space in the middle in this debate. There is just vitriol at the extremes.

You know better than this. Microsoft knows better than this. And someday, I hope our government might know better than this, as well.

Three years into the Bush Administration, it’s time for it to recognize a simple and obvious fact: Just because a powerful corporation says something doesn’t make it true. And just because a policy is good for a powerful corporation, it doesn’t necessarily make it good for America.

There is nothing wrong with lobbying; there is nothing wrong with Microsoft lobbying, either. The job of a government official, of course, is to listen to the views of well-paid lobbyists, as well as opposing views. But we don’t pay government officials to be second-rate lobbyists for powerful corporations. Independent and informed judgment should be the standard. Yet it is, increasingly, rare that the Administration applies this standard—and at a time when independent and informed judgment is needed most.

Lawrence Lessig is a professor of law at Stanford Law School and the author of The Future of Ideas: The Fate of the Commons in a Connected World and Code and Other Laws of Cyberspace. Please send comments and questions on this column to

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