Open Source and the Law

“The risk in patents and DRM and DMCA is we stifle that innovation."

This is the final installment of our FOSS series. Hope you enjoyed it.


The success of open source business models will, in the future, lead to changes in the law.

The current copyright and patent regimes date from the 1990s, when proprietary business models were at their height and the Internet was in its infancy.

This is no accident. Hints of what was to come – the launch of Linux, the World Wide Web, the Free Software Foundation, and the publication of Eric Raymond's classic The Cathedral and the Bazaar, (not to mention such Internet commerce classics as Seth Godin's Permission Marketing) were showing the way to a future which incumbents were desperate to close off.

Thus, in 1997-98 we had the Digital Millenium Copyright Act, the Sonny Bono copyright extension and the No Electronic Theft Act. During the 1990s the idea of software patents and business method patents also gained wide currency.

It was around this time that the phrase Intellectual Property first came into wide use. Patents and copyrights, seen by the Founders as “monopolies” aimed at encouraging the creation of new inventions for the common good, would now be seen in the law as permanent corporate goods, the rights to which could veto innovation.

The SCO case  was a business watershed, not a legal one. For the first time, business aligned against “Intellectual Property” interests. Since then, much of the open source movement's fire has been directed against software patents.

It now seems obvious that the current Intellectual Property regime actually slows progress. When Bill Gates demands an open source process in order to fight AIDS, something fundamental has changed.

In fact, says VA Software founder Larry Augustin, enforcement of the current regime, through Digital Rights Management (DRM) software, is killing American competitiveness, and could kill Linux. “In the next 3-5 years we have to achieve significant market share and tip the balance from Windows. It we don't do that we will find ourselves in a Windows world for the next 30 years.”

And the best software may not win, because of DRM, which is required in order to use most content today. “The DRM debate reminds me of the debates about encryption a decade ago. It was a munition. The rest of the world wound up with better encryption, and we were left behind. Eventually the government gave in.

“The U.S. is going to put all these restrictions on, and as a result we are going to fall behind in innovation around consumer devices,” like the Moveavi video editor, hand-crafted in Novosibirsk, Russia. “They can't force the whole world into this regime. It's not going to happen. There are too many emerging economies they will not be able to control.

“The risk in patents and DRM and DMCA is we stifle that innovation. Here are exciting commercial devices we'd love to use at home were it not for DMCA, DRM, and those kinds of restrictions.

“That drives me crazy.”

A collision is coming between the law, written to benefit proprietary vendors at the dawn of the open source age, and this new business model, which increasingly chafes under its restrictions. Right now the momentum remains on the side of those who want to strengthen copyright and patent law, but as FOSS continues to grow, and proprietary models continue to wane, the tide is going to turn.

Business is going to demand it.


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