Should Free Software Go Into the Public Domain?

I’ve just finished an interesting Twitter conversation with Glyn Moody (author of Rebel Code: Linux and the Open Source Revolution, still one of the best books on the free and open source software phenomenon). Moody has written a very interesting article over at TechDirt, which wonders whether the time has come to put free and open source software into the public domain rather than releasing it under a variety of licenses which rely for their efficacy on copyright law. (Moody’s article finds its provenance in a paper by Clark Asay, who argues that FOSS could be released into the public domain and yet still thrive as a collaborative project.)

My initial response to Moody’s article was skeptical. (Full disclosure: I have not read Asay’s article but will soon do so.) Several years ago, in our book Decoding Liberation: The Promise of Free and Open Source Software, Scott Dexter and I had argued for the superiority of FOSS licenses like GPL over permissive licenses like the BSD because of the worry that the latter made free-riding possible. (Those arguments are still relevant though I will not repeat them here; please do check out the link.)

Moody addresses this worry by quoting Asay:

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.

and then goes on to say:

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.)

As I noted in my conversation with Moody, I’m considerably less sanguine than he is about these prospects. I do not doubt that FOSS has made great inroads in the world of software (Moody quotes figures like ‘94% of top supercomputers run Linux; 75% of smartphones run Android; tablets next…’). What I do doubt is whether the value of free software is understood at a more conceptual level so that the closing of a formerly open project would be viewed as a bad thing by the developer community (and by users). Moody thinks so, of course, hence our polite disagreement. (I also think new laws will be needed to protect developers from patent infringement claims.)

In any case, I think the argument is an interesting one especially as one might think that copyright protection was only required for FOSS because of the onerous copyright regimes that it exists in and that a move to the public domain would become easier in an environment that understands FOSS’ promise better and so would be less tolerant of the closing of a formerly open project (like Apple closed BSD). Again, this will only happen in a different legal regime.

Hopefully, I’ll get the time to read the Asay article and respond to it more thoughtfully sometime soon. In the meantime, comments welcome.

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