Take software patents, which daily seem more and more perverse. Not only do they threaten the ability of people to write original code and distribute it as they see fit, they effectively prevent people from commercialising open source software even when the writer is happy for this to happen and the patent holder has said that open source use is fine.
There is a misapprehension, encouraged by industry worthies such as Jonathan Schwartz of Sun, that open source in general and the GPL in particular is a wholesale abdication of rights by authors. Nothing could be further than the truth — it, like the Creative Commons scheme, involves an explicit statement of those rights. Nothing is lost. A software writer can simultaneously license their work under the GPL, which commits those who extend or modify the code to follow the same rules, and license exactly the same software for closed development to those who want to incorporate it in a proprietary product.
Thus, even under the GPL, open source development doesn't just enrich the free software community, it feeds back into more traditional business models. If you don't want it free, you're welcome to pay. Other open source licensing models are even more liberal — BSD imposes next to no restrictions on commercial or open use of code — if that's what you want.
Patents break this model. IBM has released hundreds of them to open source developers, which is a welcome commitment. But that means the code can never go into proprietary form: IBM would have to make its patents available to anyone to do anything for that to work, at which point the patent might as well not exist. Even with the best will in the world on all sides, patents are fundamentally incompatible with the essential traffic in ideas that keeps software progressing.
We have never denied the importance of intellectual property, nor the appropriate protection of such rights. But these must include an acknowledgement of the rights of the community: patents are designed to do this for inventions, but do not work for software. They are poisonous. They benefit lawyers and patent agents, but send the rest of us into fits of despair.
Without a wholesale reform of the law and the introduction of a protection regime designed to fit the unique nature of software development, we will lose the freedom to innovate. What that reform should be is open to debate: that it is needed, is not.
Talkback
What kind of nonsense is this:
"If you don't want it free, you're welcome to pay."
The author obviously doesn't understand free-market economics - it is precisely the fact that if a good or service IS free that no one WILL pay.
The problem most software authors and companies have is that by licensing one's source under GPL, GPL MANDATES that 1) any additional code (including a company's proprietary extension of open source code) be also GIVEN AWAY FREE and 2) 'free' is not a business model. The more freely available a commodity is, the less its value will be. Selling things is all about creating value, not turning a creation into a worthless commodity like air.
The Open Source and GPL folks will never win over any real business people because Open Source is Communism - taking value that one person created, and giving it away to everyone else for free.
There is no profit in Communism.
Enough with the "Communism" nonsense, Mr McCarthy. The GPL is about *sharing*, not taking. You are allowed to use other people's valuable GPL code in return for releasing your modifications under the GPL too. Quid pro quo. If you don't want to release your code under the GPL then you are welcome not to use GPL code as a starting point.
And businesses *are* waking up to the value of GPL code. Take Tivo and LinkSys, for example.
In 40 years in the industry, I have never seen or heard of a case where a software development would not have been made if patent protection had been unavailable.
Therefore there is simply no justification for software patents, period. There is zero evidence they are necessary to encourage innovation. There is a mountain of evidence that they discourage it and increase costs and risks unnecessarily.
In reply to the first post, you clearly missed the point. MySQL for instance sells a version of its database with a commercial licence that lets the buyer create their own applications that they do not have to make available as open source; if you don't want to pay for the database you can take the open source version for free, but then you are bound by the open source licence that accampanies it. As we say: If you don't want it free, you're welcome to pay. And it works for MySQL, which is a growing commercial company.
I agree with the first comment: it's well known that the only way to make money from software is by selling it as a shrink-wrapped product in the high street or as part of a mobile phone. It's hard to write the stuff too and it takes a long time so the market would be much better served if proprietary software developers could just take the free stuff written by those dirty hippy Communists - they obviously don't understand what copyright is for anyway. The way things are now though - actually being *forced* by these FSF thugs to 'GPL' everything we write or end up at the bottom of the river - well that's really just intolerable. I can't get any work done for worrying that maybe the next time the doorbell rings it'll be a visit from Moglen or Welte.
Hopefully software patents will help save us from this internet enabled dystopia of confusingly diverse and innovative software, unlicensed ideas flying around unprotected all over the place, disruptively competetive SMEs and irresponsible individuals who think they can just use their own computers without regard for the needs of the multi-national hardware manufacturers, patent attorneys and IP companies. The foundations of the free market are severely undermined by all this errm... freedom and it must be stopped. The great economist and philosopher Emmanuel Goldstein has written a book: "The Theory and Practice of Oligarchical Collectivism", describing how the free market is really supposed to work and which I think ZDNet UK journalists and editors would do well to study.