Could Open Source Software Be Put Into The Public Domain Instead?
from the need-to-fix-public-domain-first dept
There are dozens of free software and open source licences -- many would argue rather too many. Different licenses impose different conditions. For example, the best-known and most widely-used is the GNU General Public License, which is designed to ensure that anyone building on GPL'd software and distributing it should make the modified program available under the same license. Others, such as the BSD license simply require the copyright and license notices to be included with any code that is used.
Open source licenses are often described as the "constitutions" for the communities that form around the software they govern. That would seem to imply that in their absence, alongside other unwanted consequences, the communities would collapse. A provocative paper by Clark Asay, Assistant Professor at Penn State University Dickinson School of Law, suggests that this isn't the case, and that software could be released into the public domain and yet still thrive as a collaborative project.
He points out that despite its undeniable success -- free software now dominates many of the most important sectors in computing -- there are transaction costs associated with it. For companies, these arise from ensuring full compliance with licenses, no mean task if corporate lawyers are unfamiliar with the subtleties of this world. For programmers who are choosing a free software license for their code, not only is there a bewildering choice, but some of them are mutually incompatible. This means that code from one project can't always be dropped into another using a different licence, which makes building on open source harder than it should be.
Asay suggests that placing software into the public domain would avoid all these issues, and allow the code to be re-used more widely, with resulting benefits for coders, companies and users alike. However, he recognizes that there are some important concerns that need addressing.
For example, one of the strengths of licenses like the GNU GPL is that it prevents free riding: if a company takes GPL'd software and uses it in a product that it distributes, it must adopt the GNU GPL and contribute its code back to the original code's community. If the code were in the public domain, that wouldn't be the case -- it could simply be taken and used without further ado. But Asay notes that there are good reasons why companies are likely to make their code available anyway:
if a firm were to take and close a project, they almost certainly would not obtain the free labor that contributors around the world are willing to provide to open-licensed projects. Without that free labor, firms would lose the most significant advantages of an open model of innovation, and the free labor would likely remain loyal to the open version of the project. Firms thus already have incentives to open and contribute as much of their materials as possible, since doing so will attract free labor and trigger innovation in directions that better suit the firm and its strategic direction.
The key point is that the code without the community that creates it is pretty much dead. A company may gain a short-term advantage in taking public domain code and enclosing it, but by refusing to give back its changes, it loses any chance of collaborating with the coders who are writing the future versions. It will have no influence, and no way of raising issues of particular concern that help it with its products. Instead, it will have to keep up the development of its own version of the code single-handed. That's likely to be costly at best, and may even be impossible except for the very largest companies (Apple is an example of one that has succeeded, basing its Mac OS X operating system on the free BSD version of Unix.)
That also explains why coding communities will still function, even in the absence of "constitutions". Anyone who refuses to accept consensus decisions simply becomes isolated if they try to ignore them. Alternatively, if the community leadership starts to go astray, forks of the code may occur that gain sufficient supporters to become the main line of development. In other words, the natural collaborative development dynamics produce many of the same results as formal licenses that lay down what norms and behavior are expected.
Asay also tackles the important issue of attribution in a world of public domain software. Many programmers contribute to free software not for direct economic benefit, but to enhance their reputations, which may translate into financial benefits in the form of a higher salary or job offers. Asay points out that the current system of providing recognition is unsatisfactory -- often attribution is buried deep in licensing documents that no one ever looks at. That may explain in part why developer profiles on the popular GitHub code hosting service are becoming more common: it's a way of displaying programming prowess in a form that is easy for peers -- or potential employers -- to access. As the site itself explains:
Every developer gets their own profile page that is automatically updated with a stream of the important things they are doing on GitHub and a list of the Open Source projects they are hosting at GitHub. Many developers have started referring to GitHub Profiles as the new résumé.
The use of such pages makes the attribution requirements of software licenses less crucial, and would obviously work fine even if software were released into the public domain.
One problem with Asay's idea is that the state of the public domain today is unsatisfactory. For example, it is very hard to place works in the public domain -- the Creative Commons CC0 is perhaps the most thoroughly worked-out tool for doing so. As Asay notes, we need legislation to formalize and facilitate this move, and to address issues such as liability.
This difficulty emphasizes how much the public domain has been neglected as copyright maximalists have sought to portray it as an anomalous wasteland that needs to be made "productive" by reclaiming it through copyright enclosure. But the public domain is the natural condition of all knowledge -- that which can be shared freely -- while it is copyright and its monopoly that is the deviation from that state. If nothing else, Asay's proposal may help to bring some much-needed attention to this important but neglected area.
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Filed Under: licenses, open source, public domain
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Open source or public domain is where everyone can change the "Made in [put country here]" and start putting the "Made in my garage"
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Re:
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Been there, done that.
They exist specifically because this "assume everyone will play nice" approach failed. It failed very quickly. It only took one jerk to take advantage and create a commercial derivative.
After that, the original contributors screamed bloody murder and the GPL was born.
Copyleft licenses and copyright enforce equality and allow all collaborators to exist on an equal footing with each other. They ensure that one jerk won't take advantage of everyone else. This "law and order" approach to liberty is what allows collaboration with Free Software to flourish.
It's all about the contributors.
The honor system doesn't work. It was already tried.
Liberty requires the rule of law.
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A professor who knows nothing of the real world...
1. The professor completely mis-understands why open source exists - it exists because of free speech, not free beer. And the licenses are there to insure that the speech remains free, much like the US constitution guarantees freedom of speech. The genesis of this idea is that, in the early 1980's, some programmers realized that quite a lot of community knowledge in the craft of software production was being lost because code was not 'visible' to newly minted programmers. Worried about this trend, they came up with the radical idea of enforcing continued public availability of community knowledge through licensing. This radical notion eventually came to be branded as 'open source'. It is not about a community _producing_ software, it is about the knowledge related to _how_ it is produced being open & freely available. That knowledge, in software, is transmitted primarily through through source code.... The side effects of easier extensibility, crowdsourced development, communities, etc. are side-effects of this licensing model, but are NOT the primary reason for it. Public domain cannot achieve this (cf. tragedy of the commons) - it was the locking up of public goods (in particular EMACS) that cause people to think of this very model.
2. That corporations and their lawyers don't understand open source is pretty much completely untrue. All F500 corporations have policies in place for the usage of open source and it is very well understood. It's so well understood that there are streamlined approval processes in most F500's that actually make it FAR easier to deploy & use open source than other types of licenses. Why? Because the licenses are all STANDARD - every GPLv2 license is exactly the same as every other GPLv2 license (etc). This is vastly different than proprietary licenses, each one of which is different and HAS to be vetted by legal... There are other issues related to using open source in commercial environments (support, IP isolation, etc) but legal issues due to licenses are definitely not one of them.
Suffice it to say that this assistant professor has thought up an intellectually interesting thought that has zero bearing on the real world....
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Re: A professor who knows nothing of the real world...
As stated, keeping FOSS under copyright keeps it protected from pinheads that will take advantage of it and then place their versions behind paywalls - witness the BusyBox kerfuffle a couple of years ago dealing with router and other set-top vendors who used BB's open source software without providing access to changes back to the community, as required by the GPL licenses that they had agreed to by using the software!
So, PD is great, but there definitely is a place for GPL'd and CC'd licenses - you want to use it, NP. You want to charge for it (commercial use), pay us to support it! You want to change it? NP. Just provide proper attribution, and release the changes under the same caveats that we provided with the original source! PD doesn't allow for that, and yet that is what will keep the open source community health and vibrant - just my opinion... :-)
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Re: A professor who knows nothing of the real world...
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"Without that free labor..." -- Well, Apple wouldn't have an OS.
Anyhoo, I keep wondering if Minion Moody even notes that:
a) Creative Commons licensing relies on being legally enforce-able, just as does other copyright.
b) The moral right to insist on licensing terms isn't even in question: the products exist solely because of the creators.
c) Every creator wants a reward, even if only notice.
Now, the sum of those to me is that COPY RIGHT IS NATURAL. Open source is essentially the same as copyright in that the creators insist on keeping control! I suppose you might try 'splainin the diff, cause I just don't see WHY you're so down on "copyright"!
Now. This is flatly wrong: "the public domain is the natural condition of all knowledge" -- NOPE. You're some kinda communist, aincha? -- Knowledge begins inside one individual's head. Of course many people can look at the same facts, that's "mere" perception of reality, but EACH individual brain must grind through whatever mysterious calculations that wet-ware does, and THEN it's knowledge, and THEN it can be "shared" -- but no one is required to do so either morally or practically -- and there's definitely no communal knowledge without developing a complex set of symbols... Meh. Like talking at dogs here, so I'm exercising my right to keep more in my head.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
It uses the same legal tools and principles to basically achieve the same thing as a public domain, but one public domain with legal teeth in it you dolt.
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Re: Been there, done that.
There are plenty of successful projects which allow for closed-source commercial derivatives. All products licensed under the MIT, BSD and zlib licenses are of this sort, the licenses' main purpose being to ensure attribution and communicate the author's intent with respect to licensing.
These licenses haven't killed the projects in question, and they aren't lacking contributors.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
Language (a complex set of symbols) is not natural, it is developed. Copyright only exists through language. No language, no copyright. I would even speculate that there are no rights at all without language. Society grants us rights through language. Even some we would like to believe are "inalienable", which is a laugh riot. For now, society says there is a copyright. Just don't conflate that with being natural.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
1. The largest contributor to the Linux kernel recently was MSFT (yes)
2. 90%+ of all Linux committers (and not just in the kernel) are paid to do so, e.g. it is part of their jobs.
3. Among the largest contributors to open source in the last 15 years has been the finance industry. For the first 8 years of this period they ACTIVELY avoided any attribution (and mostly still do).
4. Most formal entities (companies, gov'ts) prefer to contribute projects with more 'liberal' or zero licenses, although this has been changing in the past 5 years.
5. Copyright is the basis for open source licensing and the mechanism by which all open source licenses are enforced.
6. 'Public domain' is the natural state of information. There is no other state unless you assign licensing terms. Note that 'public domain' does not necessarily mean that no one has a copyright. Never mind that copyright did not exist until about 200 years ago when the first laws granted it to creators...
7. AFAIK, there is only one country in the world that specifically allocates copyright as a 'natural right', eg. where copyright is a birthright, like free speech or the right to vote and cannot be given away.
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Apple, BSD, and OSX.
Done.
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Open sourced software using gnu or other similar licensing has some restrictions in that the writer wants compensation when their brilliant (or worthless) contributions are used for profit. How do we as a society reward the individual software writers contributions? Some method would be cool. Public domain would not do this. Hard to analyze is the collaboration which the open sourced community provides.
“(Apple is an example of one that has succeeded, basing its Mac OS X operating system on the free BSD version of Unix.)” Wow! I did not know that. I mean really... WOW! -metaphorically kicks S. Jobs- (I have learned something.)
My theme lately is limiting the terms of copyright to much less that the lives of the audience say 15-30 years or so. Better yet kick the entire copyright amendment out and enact a new 'Right of Origin' amendment. (or whatever)
This is a great topic that exemplifies the difficulty of rewarding ones personal coding effort and conflicting needs of the public at large. NOT resolved but it great to try to tackle it.
Disclaimer: went Linux years ago. (Apple = Windows = walled proprietary garden = DUMP)
Chris Maresa: beyond me but what I comprehend I agree with.
Spaceman spiff: the 10c cuppa joe... (nostalgia) Inflation... monetary policy??? Yikes.
out_of_the_blue (unregistered nick) raises good moral controversy. All solved by limiting copyright terms to less than the lives of the audience. (hehehe)
Chris (again): “Microsoft has been a large contributor to open sourced software”. -suspicion- (the officially unsecured windows OS does not breed trust) #7 what country?
To the topic: if copyright was limited to a term less than my (your) lifetime what would it matter about restrictive copyright terms? (gnu or otherwise?) It is culturally (vitally?) important that we be able to use what we learn within our own lifetimes!!! to enable our individual greatness, or that our entire lives be declared irrelevant? (wow what a concept! Please expand on this,)
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The reason why open source licences exist rather than simply being public domain in the first place is that the corporate giants would most likely just steal the code, make whatever changes were necessary to take it out of the public domain, copyright it and lock it back up again. They'd probably then use their patents and copyright claims to shut down the public domain sources they stole from. You don't have to look any further than Microsoft's early reactions to Linux to see that this would happen.
By making them open source, they are still protected by copyright against inevitable misuse, forcing those corporations to respect their creators and submit back to the community if they decide to contribute.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
Attribution is about the only right of creators that has been respected for any length of time.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
A quick rebuttal:
- You *are* aware that not only is OSX heavily modified from its FreeBSD source, but that it's not Apple's first OS, right? They had OSes well before they touched open source, why wouldn't they have one now without it?
- No one wants to contribute to free projects? I can post links to hundreds of thousands of projects that prove you wrong, but your idiocy is clear enought without the need for citation.
- Copyright is natural? A legally enforced restriction on what people can do with content, that only appeared in very recent history, is natural? I shudder to think at the kind of society your fictional world contains, but thankfully it's fictional and nothing to do with the world the rest of us inhabit.
- Also, I'm not surprised that you haven't got a clue what knowledge actually is. It makes sense that someone so completely and consistently wrong as yourself doesn't understand knowledge.
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I've never known anybody to even suggest this. The purpose of the GPL is to stop industry or other entities building on open source code and then refusing to share their improvements. Clearly such entities would not really be part of the core community and would just be bit part actors on the side lines scraping up scraps of code from the web.
The problem is not so much the "not sharing". It's the unfair advantage they gain.
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Hi,
I'm sorry for my ignorance, but I think this question really belongs here: I naturally thought that releasing information into the public domain means that anyone can access it at any time in the future. Isn't it the case?
If this is the case, why do you think that if information has been put into the public domain, then it may get lost? If someone uses it and hides the derivatives, it doesn't really mean leakage, because the original information is still available. I guess that in the past the free licenses — this kind of protectionism — were really necessary to ensure that the free approach to dealing with information would find its safe path in the world of commerce; was this really the cause? If it was, then how much necessary they are now for people developing free software? In the case of software, industry has appreciated free knowledge now... Thank you for your analysis!
---------------
Re: out_of_the_blue
Hi,
Thank you for your post. I think that by "the public domain is the natural condition of all knowledge" Mr.Moody meant that one cannot reasonably own knowledge, it is simply impossible; knowledge (laws of logic and nature) does exist outside any individual and as such cannot be "owned". Therefore, it cannot be "shared"; it would be like sharing stars or sharing air.
Practically: sure, one doesn't have to "share" what appeared in his or her mind, but if someone else learns the same thing, generally it is not fair to restrict her/him to develop what s|he learned, possibly by examining others' results. This would be a restriction (violation) of a natural and worthy freedom. The problem is that while knowledge doesn't belong to anyone, work does; and the question is whether, and if yes then when and how, work can be protected and "shared". By protecting its results? But what if some part of the results are knowledge, which is, in theory, free? Maybe, in some other way? Looks like difficult questions...
By the way: the "share-everything-you-have" approach is a very simplistic description of communism, and, as I suspect, a quite erroneous one. But this is a difficult question, too; there are many different communisms described by many people, to begin with.
Thank you again for sharing your thoughts.
-----------------------
Please forgive me my mistakes of word usage or grammar; I am not a native speaker of English nor ever tried to learn it thoroughly.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
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Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
Why would they have pangs of conscience? They didn't violate the license.
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Re:
How is Windows a walled garden? There's plenty to criticize about it, but you can put any software you feel like installing on a Windows machine.
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Re: Re: Re:
I'm using it right now.
The ability to run non-Metro apps is legacy, planned for removal.
In other words, still there.
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Re:
That's simply not true. No open source license says you cannot use the software for profit, it merely says you have to release your modifications under the same license as the original software.
This is fundamental and pretty much invalidates the rest of your comment.
And, BTW - http://bit.ly/YItrC9
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Oh yeah?
There are costs associated with complying with any license. There are less for most open source licenses.
"no mean task if corporate lawyers are unfamiliar with the subtleties of this world."
If your contract and licence lawyers are unfamiliar with the subtlties of licencing, you should probably kick them out and get lawyers who know their jobs.
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Re: Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
NO, they simply would not have THAT OS, they would have an OS, just like Microsoft has an OS, and IBM has an OS.
you could just as easily say, that without UNIX there would be no open source OS !!!
Much if not most of the knowledge that has gone into the Open Source OS, or applications has been taken from knowledge gained by commercial, proprietary and closed system.
NOT from being OPEN, but from using knowledge gained from CLOSED systems.
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Re: Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
something that is natural is defined as 'exists in nature', a tin can therefore is natural, it's NOT unnatural !!!
Someone said language was developed and not natural, Most people would agree that language developed naturally.
It was not 'developed' it developed naturally, language, like knowledge is a natural thing, language is a form of communication, not the communication itself. Language, as communication has been around much longer than written language, as long as language has existed, copyright would have existed, it developed naturally just as language developed.
nor does natural equate to good, or better, for better for you, plutonium is natural, just as snake venom is, as is arsenic.
also, copyright or language is not knowledge, either is a written document, or computer source code, none of that is knowledge, knowledge is not related to WHAT YOU HAVE, it relates to what you know, within your brain/mind.
It's got nothing to do with information, you can have all the information in the world and have zero knowledge or understanding.
I know the authors like to play with word meaning, and the meaning of anything, these same people make a living from the application of THEIR KNOWLEDGE, processed in their own brains. They also put their name on what they write, making it clear they have claimed ownership of that expression of knowledge.
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Re: Been there, done that.
...proving once again that people are stupid. "Oh, look at this horrible extreme thing that's causing harm. We need to reject this and fight against its harmful effects. I know! Let's set up a new system that's just as extremist as the problematic idea we're trying to reject, and push it as The Only True Way now. What a brilliant idea!"
The GPL is not about getting more people to use (and to contribute to) your code; it's about pushing a strict anti-proprietary-software ideology on everyone in the name of "freedom". And it's given the entire concept of open source software a black eye because a lot of people equate open source with the GPL and all of its ugly restrictions. No one has done more harm to the essentially good ideas behind open source than Richard Stallman and the FSF.
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Re: Re: "Without that free labor..." -- Well, Apple wouldn't have an OS.
There is, however, no equivalent "reading center". That's purely an invented concept.
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Re: Been there, done that.
If you just want to give it to the world with no strings attached, public domain is fine.
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Re: Re: Been there, done that.
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Re: Re: Re: Re:
While it's true Microsoft had in the past made operating systems that were not walled in, that was the past. And the fact that you are currently still using one of those is irrelevant to the current corporate offerings.
"In other words, still there."
Windows still has a part not walled in, but there is still the other side that is walled in. So Windows is a walled garden, much like websites that have some stuff public and other stuff behind a wall.
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Re: Re: Re: Re: Re:
1. I was responding to your speculation that I haven't used Windows recently. 2. The original quote did not reference "current corporate offerings" but "Windows".
Windows still has a part not walled in, but there is still the other side that is walled in. So Windows is a walled garden, much like websites that have some stuff public and other stuff behind a wall.
The vast majority of current Windows installations are open. And that will likely remain so for several years at least. Part of the most recent Windows OS is a walled garden. And my understanding is you don't have to use that part; you can just use the open part. So I still maintain the assertion "Windows is a walled garden" is inaccurate.
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Apple's success...
I'd say that Apple could release more updates faster and be more secure than they are if they'd leverage the power of the community a bit better.
...but who am I to argue with the Ghost of Steve Jobs?
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Re: Re: Re: Re: Re: Re:
The name Windows must be meant to represent the kind with bars. Windows = walled proprietary garden!
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Re: Re: Been there, done that.
I just happen to believe that a "pay it forward" license like the GPL makes the most sense for free software. While the license isn't perfect, it's a lot easier than writing my own license.
Ideally, I would like to see a GPL variant that excludes commercial exploitation.. I don't want to see my free programs bundled up and sold on EBay, for example.
But GPL works perfectly for what it was designed for; it keeps projects like Linux free for people that need free, and it mandates that companies like Red Hat and Google to give their improvements back to the community.
I honestly don't think the current free software ecosystem would be doing nearly as well today without a license like GPL behind it.
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Re: Re: Re:
The first thing I installed on all 3 of my Windows 8 computers is Chrome.
Chrome can run on the Metro full screen interface or on the desktop.
Chrome did NOT come from the Microsoft store.
So please explain how my walled garden OS is allowing me to run a Metro app that I didn't get from Microsoft?
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Re: Re: Re: Re:
By "Windows is a walled garden" he seems to mean "some future version of Windows will probably be a walled garden". ;-)
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Re: Been there, done that.
Just another PhD, that doesn't know what he is talking about. If someone designs, and builds a better mouse trap, to just give it away would be a loss of time, and money. No one works for a loss! Since there is no patent, or licensing use, someone will profit from the inventors loss. As always, lawyers get in the way. The GPL provides the inventor a standards use contract that can be take to court if need be. Also, it gives credit where credit is due. To just release it to the public domain is foolish. I declare Dr. Clark Asay's paper null and void.
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Re: Re: Been there, done that.
How is that any more giving it away than releasing something under the GPL?
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I like where this is going...
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