From: www.itworld.com

Open source: It's the law

by J.S. Kelly

March 26, 2001 —

 

Overwhelmingly, responses to my last column contained challenges from readers who did not think that language or a dictionary were very adequate comparisons to use in a discussion of open source development and free software. (That article covered the scientific method, open source, and the Oxford English Dictionary.)



But I stand by my metaphor.


If language and communication consisted only of cryptic codes and secret
handshakes, we wouldn't get very far in life. And with more and more of
our world depending on computers and technology, we'll not get very far if
these crucial systems are closed.



Open source development is like a box of chocolates



For those who object that language isn't the best comparison for the open
source development model, I offer another: open source development is
like the law.

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Take the United States Constitution, one of my favorite constitutions of
all time. Everyone is taught in school -- but few people recall in day-to-day life -- that the US Constitution was written by a collective of
authors, who pulled all-nighters from May until
September 1787 to hack this document together at the Constitutional
Convention.


It must have cost quite a bit of time and money (for food and lodging and
lost wages, if nothing else) for the founding fathers to have spent that
much time in Philadelphia drafting the document. And it took years of time
and effort before it was ratified. As with the costs associated with
writing open source software, it is hard to know if the real costs were
actually recouped against the bottom line in the end. But the benefits
have been very real, and we have reaped the rewards of their efforts for
more than 200 years. I for one salute their effort, their dedication -- and
their modular design. And regardless of whether the costs were recovered,
I would not want to change the fact that, in the end, we got the US
Constitution.


Strangely enough, I'd have been in the minority with this opinion back
when the deed was done. In the same way that many institutions today don't
grok the benefit of free software, many politicos then failed to see a
benefit in the Constitution. That wasn't because of cost, but because the
individual states were at that point feuding as hotly as software companies do
today. They didn't like the idea of a centralized federal power taking away any
of their liberty or exercising authority over them. Many modern
companies also fear that the power of free software will take away their
"competitive edge."



The law is open source



There are more ways that the legal system reminds me of free software,
though.


The legal code is also constantly evolving. Cases, new legislation,
precedents, and rulings all influence each other, and in the process create new areas of law or tweak,
or rewrite existing ones. In this way, the legal code -- like
open source software code -- has multiple authors. All of us have the
power to modify it, and it belongs to all of us equally -- in theory.


In reality, you must have knowledge -- either of programming or of law --
to really be able to understand and effect change in either case.


It even holds true, in law as in programming, that a small fix in
one part of the code will often break something somewhere else.


And when a lawyer's arguments become part of the public record, they not
only can be used again -- if the case sets a precedent, it would be
unwise not to use them again.



Closed-source law



Now imagine if we couldn't read the very laws which govern us -- but not just
because lawyers purposely obfuscated them with jargon, as they often do now. What if the laws were secret, closed, locked up? We'd all, each and every
one of us, be like poor Josef K, the hero of Franz Kafka's The Trial, who
was never told what it was that he was on trial for.


In our world, there are several models for hiring legal counsel. Some
companies have lawyers working for them full-time, some pay a retainer,
some hire lawyers on an as-needed basis. The programming profession, too,
could even be said to work this way.


But the laws which are created or altered by the efforts of the
specific lawyers do not then become proprietary and something
that only they and their clients can use.


People wonder what the business models would be if all software were free,
and I think that this example, that of the legal profession, provides one of
them. After all, where is the model to make money from the law? (In an ideal world, I mean, not ours.) If anyone can read the law and defend himself (foolish as that's alleged
to be), where is the profit to be made from practicing law?


Lawyers made a good living even before our society degenerated into litigious lunacy and allowed them to reap a percentage of ridiculously large settlements. No matter what, programmers would still be sorely needed
even if all software were free software.



Get the clue stick, quick!



That having been said, I'm not convinced that open source can be applied
to all areas of law.


Did you see the recent Openlaw coverage, in which ideas for arguments in
defense of the DeCSS defendants are being collected online, so that anyone
can contribute? (Please see Resources for a link to the Openlaw
Web site).


What earthly benefit could a legal team gain in building a case in full
view of the opposing side? Isn't that like going in to battle and showing
the whole world your strategy beforehand? Or flashing your football plays
on the scoreboard during the game? I'd like to play high-stakes poker with those guys, I really would.


OK, so I know that, in an ideal world, these kinds of things might all be
settled amicably, with both sides really wanting to settle fairly
according to the law. People would be downright glad to lose a case, in
that world, because they'd be so overjoyed at knowing that justice had
been served. And if the people who won the case discovered that they'd done so in error,
by golly, they'd march right back into the courtroom and confess.


I'm sorry, but the world doesn't work that way. And I seriously doubt that
it ever has, except in children's television.


If such a world did exist, then I imagine it would be possible to have an
open source case. And I wholeheartedly advocate (no, really, I do)
fighting to try to approach that kind of model world.


But we're not there yet, and won't be anytime soon. That's why Dan
Bricklin, the cocreator of VisiCalc, advises developers to get patents on
their software inventions, even though he doesn't believe in software
patents (see Resources for background on this). It's also why
Richard Stallman doesn't put his software in the public domain, or under a
BSD-style license.


Such licensing schemes assume too much honesty and integrity on
the part of others. As Bricklin says on his Website, "Ignoring [patents]
won't make them go away, nor protect you from those that do not have the
same beliefs."


The Constitution does protect you from those that do not have the same
beliefs as you do. And, as reader Todd Rossman pointed out after I
compared proprietary software with communism a few weeks back (I'm a columnist and thus I've got an
inexhaustible supply of weird metaphors), central authority is OK so long as you have a
benevolent dictator. He didn't say that in so many words exactly, but instead quoted Aristotle: "It doesn't matter who rules, as long as they rule
well."


And I think that he's absolutely right.


Of course, the problem with a benevolent dictatorship is that the whole
thing can very easily fall apart once the dictator's less-benevolent
successors assume command.


Our founding fathers knew that, too, and that's why -- unpopular as it was
at the time -- they believed that drafting the Constitution, which
guarantees freedom for each and every one of us, was the right thing to
do.


And guaranteeing equal freedom for everyone is just what the GPL does for
software. Like the Constitution, it guarantees that, if the dictatorship
ever becomes less benevolent or even downright wicked, the little guys,
the individuals -- We The People -- still retain our rights.


I look forward to being roasted by those of you who prefer BSD-style
licenses, or who want to complain about not being able to make your hacks
to GPLd code proprietary --honest! You can send email to me at
/dev/null, or make comments in the forum. See you there!


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