Category Archives: open-source-and-law

Innovation, Open Source and Lessig

Wayne Wilson on the openhealth-list has a profoundly interesting summary (reprinted here with permission) of a lecture given by Lawrence Lessig, Professor for Entrepreneurial Legal Studies at Harvard. His bio and a collection of his thoughtful articles can be found here. Wilson writes: ‘Lessig is a legal scholar and it is not immediately obvious that legal arguments would be appealing to us, but I think they are.’

Lessig starts by observing that the recent rise of the Internet and Open Source software has created the most innovation any of us have seen in our life times. Whether this is a greater transformation than the industrial revolution is unimportant, because for us, living at the edge of the new millenium, it is the most transforming process within memory. One of the significant principles involved is embedded in the original design of the Internet. That is end to end transparency, i.e. that the network exercises no control over content. One needs to ask no permission to devise and implement a new scheme of software over the Internet. This decision to disable control by other actors or competitors enabled certain features which we now take as somehow embedded within the nature of the Internet: free speech, privacy, free flow of content and freedom from local regulation. The important observation is that these things are a consequence of an architectural decision.

The next set of observations is where the legal machinery gets involved: the role of copyright, patents, intellectual property and regulation in the process of innovation and progress. Lessig outlines that there has always been a compromise between property and commons in English and American law. Copyright and patents are variations of property. Commons are easily understandable, but often forgotten in this era. It is the balance between property and commons that sets the environment for progress and innovation. And here is where the absence of control in the original design of the Internet and open source combine to create the present day flourish of innovation.

Lessig warns that the trend’s today are to re-architect the Internet to enable control, to change the balance of property and commons dramatically in favor of property, and thus to change the environment that has drawn us to the brink of a new era. Change the architecture, change the regulation and you change the outcome.

For Lessig, the importance of open source is not in it’s increased efficiency, it’s increased robustness, but rather in it’s use of commons to foster innovation. This should really be obvious to anyone engaged in producing software. Complete software applications do not emerge cut from whole cloth, rather they build upon a long and complicated foundation of previous software. The more of these building blocks that are available, the easier it is to build new software applications. These building blocks can be painstaking collected and developed as private property, enforcing a control point upon what can and can not be allowed, or they can be part of the commons; unregulated and uncontrolled. If you don’t like the particular direction a software system is taking, you just start your own variation. Someone says that Z is impossible, you just go and try to do it anyway.

Lessig argues that the rapid pace of the world that we have come to expect as a result of the Internet, indeed the very economic prosperity of the US, if not the West, is a result of this innovation. So in this view, open source (the existence of a commons for software and technology) is necessary for our continued economic prosperity as well as a continued information revolution. The old adage, don’t fix it if it isn’t broke, is being ignored by the judicial system and government regulators, not to mention all those newly minted billionaires, in a process that seems to be just as breathtaking in it’s braking effect as the previous advance of innovation was.

Lessig is particularly concerned that those of us directly involved and benefiting from the intellectual commons of information technology, seem completely apathetic while the foundational principles of our success are being regulated and engineered out of the system! Why do we abstain from the political process? Why have we let privacy turn into an issue of juvenile sex offendors only? Why have we let lack of control in end to end appear a design flaw? Why are we allowing the traditional monopolies to gain control of the Internet?

Open source is thus more than a different or better way of software development.