I’ve long been a fan of open-source software. First of all, because you don’t have to pay for it, and who isn’t a fan of free? Second, even compared to closed-source free software, I prefer open, because I can rely on it. I might never look at the source code, but knowing that one can gives me some assurance that there isn’t anything bad (spyware, viruses) hiding and that I can continue using the software even if the original author stops providing upgrades or takes his business in a different direction.

Like a lot of other people in the technology industry, I aslo tend to see free software as something more than that, as a moral good, and intellectual property (IP) rights like a dangerous weapon that needs to be controlled. (With apologies to the NRA: “Patents and copyrights don’t kill innovation, patent and copyright holders do.”)

And after a lot of reflection on the matter, I’ve figured out why I feel this way: I have no personal upside. I don’t make money from IP rights. And on the downside, and I can lose money when others decide to exercise their IP rights. That doesn’t seem fair.

Here’s a thought experiment: If, like a songwriter represented by ASCAP, I got regular royalty checks for each line of code still in production that I’d written at some job years ago, would I feel differently? Or if I was guaranteed an on-screen credit and chance at an Oscar like a union technician in a Hollywood movie?

But I’m not complaining. I have a good job and make a decent living. If I stop working for my current employer, they own that work I’ve done, and that seems fair; I was reasonably paid for providing a service. But, while I’m not making money from licensing IP, I still have the downside of costs and risk of licensing it from others.

And writing software is, in my opinion, providing a service. Software has a pretty short half-life, and whether you hire developers to write software to use or to sell, you need to keep developers on the payroll to be valued as a software shop. No one is making money selling two-year-old software, at least not without ongoing investment in upgrades and support.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago came to basically the same conclusion recently:

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. “It’s not clear that we really need patents in most industries,” he said. “Also, devices like smartphones have thousands of component features, and they all receive legal protection. You just have this proliferation of patents,” Posner said. “It’s a problem.”

via Judge Posner: U.S. patent system out of sync – chicagotribune.com.

It was wonderful to see our legal system take this view, which I’d usually associate with underdog advocates who can’t actually afford a day in court.

I’m not against all forms of intellectual property or its strict enforcement. I don’t support piracy or counterfeiting; that’s legally and morally wrong and I think it’s unfortunate that the cause of online freedom sometimes gets mixed up in defending it. Nevertheless, I see IP as a modern policy construct, not in the same category as the biblical “thou shalt not steal.” A purpose of IP is to encourage investment in innovation by providing investors with a better return, and laws should be calibrated so they’re fair to all.

Perhaps I need to find a way to own some IP that can generate some returns. Then again, perhaps creating IP, not owning it, is more fun.

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