does. Optimists believe that the lure of
capturing this huge market will keep
potential competitors hungry and monopolists scared. The lumbering dominant players, goes the argument, will
not become complacent about innovation or try to grab every morsel of monopoly rent. They still have to fear their
raptor-like competitors lurking in the
shadows. Perhaps. Or perhaps it also
takes the consistent threat of antitrust
enforcement. In any event, whether or
not we hit the optimal point in protecting software with intellectual property
rights, these rights certainly did not
destroy the industry. It appeared that,
even with convergent creativity and
network effects, software could be
crammed into the Procrustean bed of
copyright without killing it off in the
process. Indeed, to some, it seemed to
fare quite well. They would claim that
the easy legal protection provided by
copyright gave a nascent industry just
enough protection to encourage the
investment of time, talent, and dollars,
while not prohibiting the next generation of companies from building on
the innovations of the past.
In addition, the interaction between copyright and software has produced some surprising results. There
is a strong argument that it is the fact
that software is copyrightable that has
enabled the “commons-based creativity” of free and open source software. 3
What is commons-based creativity? Basically it is creativity that builds on an
open resource available to all. An additional component of some definitions
is that the results of the creativity must
be fed back into the commons for all to
use. Think of English. You use it without license or fee, and you innovate by
producing new words, slang, or phrases
without clearance from some Academie
Anglaise. After you coin your term, it is
in turn available to me to build upon
or use in my own sentences, novels, or
jokes. And so the cycle continues. But
with words we have commons-based
creativity because there were no property rights over the relevant material.
The software commons is different.
The creators of free and open source
software were able to use the fact that
software is copyrighted and that the
right attaches automatically on creation and fixation to set up new distributed methods of innovation. For ex-
ample, free and open source software
under the General Public License (such
as Linux) is a “commons” to which all
are granted access. Anyone may use
the software without restriction. All are
guaranteed access to the human-read-able source code, rather than just the
inscrutable machine code, so they can
understand, tinker, and modify. Modifications can be distributed so long as
the new creation is licensed under the
open terms of the original. This creates
a virtuous cycle whereby each addition
builds on the commons and is returned
to it. The copyright over the software is
the “hook” that allowed software engineers to create a license that gave free
access and the right to modify, and
required future programmers to keep
offering these freedoms. Without the
copyright, those features of the license
would not have been enforceable. For
example, someone could have modified
the open program, releasing it without
the source code, thus denying future
users the right to understand and modify easily. To use an analogy beloved of
free-software enthusiasts, the hood of
the car would be welded shut. Home repair, tinkering, customization, and redesign become practically impossible.
If there were no copyright over software at all, software engineers would
have other freedoms, even if not legally guaranteed open access to source
code. Still, it is difficult to deny that the
extension of the property regime had—
bizarrely, at first sight—actually enabled the creation of a continuing open
commons. The tempting real-estate
analogy would be environmentalists
using strong property rights over land
to guarantee conservation and open access to a green space, whereas without
property rights, the space could be despoiled by all.
So much for copyright. What about
patents? U.S. patent law had customar-
ily drawn a firm line between patentable invention and unpatentable idea,
formula, or algorithm. The mousetrap
could be patented, but not the formula
used to calculate the speed at which
it snaps shut. Ideas, algorithms, and
formulae were in the public domain,
as were “business methods.” Or so we
thought.
The line between idea or algorithm
on the one hand and patentable machine on the other looks nice and easy.
But put that algorithm into a computer
and things begin to look more complex. Say, for example, the algorithm
was the process for converting miles
into kilometers and vice versa. In the
abstract, this is classic public-domain