Epstein’s New Paper

by on April 20, 2006 · 14 comments

Richard Epstein has a new report on intellectual property. Epstein is a brilliant legal theorist (seriously–several of his books are classics of libertarian scholarship) but unfortunately, I think he analysis of IP issues–especially technology related IP issues–is hampered by his lack of familiarity with the underlying domain. Take this passage about open source, for example:

One ongoing question is how well open source stacks up against traditional proprietary software. Much depends on the scale of the enterprise. The decentralized methods for open source work well with small systems, but are difficult to maintain as the network expands–a problem that any proprietary system also faces in integrating backwards to existing products while introducing new products. In addition, loose cooperatives must organize to fend off outsiders claiming that the entire system incorporates their trade secrets or IP. The present SCO litigation, for example, puts the entire Linux system at risk on these grounds, prompting the formation of a litigation committee to coordinate the common defense. Right now at the heart of the movement lies a commercial joint venture spearheaded by well-established firms like IBM, Intel, and Hewlett-Packard, which develop service and proprietary programs that operate on top of an open source infrastructure. The new development gives ample testimony that no loose assemblage of voluntary contributors will be able to carry the day any longer.

To be honest, I’m not sure I follow the third sentence. I think that to the contrary, in many ways open source scales better than proprietary development models, because it takes advantage of the decentralized, spontaneous processes to solve problems rather than relying on hierarchical, top-down processes. Of course, generally speaking, large corporations like dealing with other large corporations for the IT needs, so it’s not surprising that IBM does a lot of business selling open source software (along with some of their own proprietary software) to Fortune 500 companies. But that’s not because open source can’t solve the technical problems of large companies. It’s simply that “open source,” as an idea, doesn’t have a sales force and can’t meet with corporate IT directors. IBM does, and can, so it tends to get the IT contracts. But most of the value was created by the volunteers who built the underlying software.

He then claims that “at the heart of the open source movement” are IBM, Intel, and HP. He doesn’t elaborate, but I assume he’s equating “open source” with “Linux.” This is misleading for several reasons. First of all, those companies might be spending the most money on Linux-related products, but they’re hardly the core of the Linux community. Linux is still developed by a decentralized group of mostly-volunteer programmers from a wide variety of institutions, led by Linus Torvalds. They probably don’t seem significant to Mr. Epstein because they don’t have PR departments or billion-dollar balance sheets, but they’re the ones who control the direction of the core product. The work of IBM, Intel, HP, and their ilk is largely focused on making Linux work better on their particular systems, as well as building software on top of Linux to meet the needs of particular clients. Obviously, that’s often helpful to the overall project, but it hardly puts Big Blue “at the heart” of the Linux effort.

But the broader point is that Linux is just one out of dozens of major, successful open source products that are used by millions of people every day–and most of them receive far less corporate support than does Linux. Most of them are programs that Epstein has probably never heard of–projects with names like Apache, Samba, Perl, Python, gcc, MySQL, KDE, Gnome, FreeBSD, OpenSSH–but that make up the “plumbing” that make the Internet work. Each of these projects has a core team made up of, well “a loose assemblage of voluntary contributors.” Some of them get corporate support, but that support is incidental to the projects’ viability in most cases. I can’t think of any recent developments that prove that the open source model will not “be able to carry the day any longer.” To the contrary, the open source development model continues to demonstrate its vitality by churning out spectacular products without significant corporate subsidies.

Now, obviously it wouldn’t be fair to expect a 50-something law professor to be intimately familiar with products like gcc and FreeBSD. Linux is the product that gets the most press, and IBM is the Linux contributor that gets the most attention, and so Epstein naturally assumes that IBM is the biggest driver of open source software.

It’s an understandable error, but these kinds of blind spots are dangerous when you’re doing public policy analysis. If you misdiagnose the source of innovation, you’re likely to misunderstand the institutions required to promote it. Computer geeks are the ones closest to the ground of high-tech innovation. When they’re shouting from the rooftops about problems with our IP system, I think the law professors of the world ought to pay a bit more attention to what they have to say.

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