On a Note Totally Unrelated to the Election…

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An interesting debate over Open Source between Richard Epstein and John "Q" DeLancie lookalike James Boyle.

NEXT: The Idea Trap

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  1. I’m not particularly impressed with Epstein’s piece for many of the reasons Boyle states, but I find it particularly irritating when he trots out the ‘viral license’ canard.

    He quotes the GPL, which states that any work that is derivative of a GPL’d work must itself be released under the GPL, and uses this as evidence that open source code can “infect” proprietary code causing it to become open source.

    But this completely misreads the GPL. It is a license, not a contract. He refers to a proprietary product being forced to become open source as the “remedy” to the apparent breach of including GPL code. But that gets things precisely backwards. Making your product open source is the condition under which you may license the GPL code.

    And what is the normal remedy for violating the terms of a license? Revocation of the license (and possibly payment of damages). In other words, if Microsoft were found to have included GPL code in Windows, they would be forced to remove the code and possibly pay damages depending on the circumstances. Exactly, the result that Epstein envisions when courts fail to enforce his strange interpretation of the GPL.

    This should hardly be news to anyone who has followed the open source movement for a while and it makes me inclined to view anything Prof. Epstein says about open source with quite a bit of skepticism.

  2. I’d also like to add that, as someone who makes his living from Open Source software (using as well as creating), his puzzlement over the business model rests upon a fairly great misunderstanding.

    It’s as if he believes that if no company got paid licensing fees for bridge designs, bridge designers would stop designing bridges. But bridge designers are paid salaries for designing bridges which contractors need to, well, build a bridge for a government entity of some sort. Similarly I’m not worried about recouping my “investment” as my work is work-for-hire anyway. I get a salary which encourages me to keep working on this software.

    Other people may be paid to run a Website instead of program software, but they’ll find my software useful. What the GPL (and other Open Source licenses, the GPL is far from the only one) do is to encourage that person, if they use my software but improve it in some way, to give their changes back for everybody to use.

    Note that in this transaction nobody has “lost” money. My company has a platform we can use on client projects, somebody else has a platform they can use for their project with improvements, and both of us get paid. If a third person comes along and uses the new-improved version, neither of the first two of us lose anything from it. In fact, my company’s clients benefit as the improvements can be rolled into their projects.

    Theoretically I might be the loser as my company could have charged to build those websites and make those changes, but in reality, there’s little guarantee we would have won the work at a price that would give us a profit. We benefit from technical functions being outsourced to us, which is pretty common.

    In case Dr. Epstein doubts us, we’ve been in business since before the dot com bubble and we’re still in business now.

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