Proprietary software: A defence

Open protocols vs. open source
A useful goal of government procurement, however, is to ensure that communication protocols and, to a certain extent, data formats remain "open". Governments have large varieties of IT systems, each of which is tailored to the needs of individual departments. These departments need to communicate, and this is facilitated, to a certain extent, by the use of open interoperability protocols and common, open data formats.

This does not mean, however, that the source code IMPLEMENTING that protocol must be available for all to see, nor that that protocol/format must necessarily be free. The fact that the source code for a product that makes a Web service call is publicly available does not affect whether or not that product makes the proper SOAP envelope (SOAP is a common, W3C-sanctioned protocol used in Web services).

Verification of adherence to an open protocol is relatively easy to do, and does not require access to source code. The only reason, therefore, to demand that the source code for the implementation of a particular protocol and/or data format be public is to shut down proprietary software development. As noted previously, that is counterproductive if countries have an interest in building a vibrant domestic software industry.

Intellectual property and open source
One of the issues brought up by open-source advocates is that licensed Intellectual Property (IP), such as technology embodied in a patent, can't be implemented by GPLed code, which expressly forbids non-transitive licensing or licensing fees. This is an interesting problem, particularly given that I am on record as arguing against software patents.

However, as I've explained in another article, companies operating within a patent regime have no choice but to acquire patents in order to build defensive libraries and effect patent trades.

From a government procurement standpoint, I think it's fair to require that a communication protocol or data format be open to anyone who wants to use it (in other words, equitable licensing to competitors and non-competitors alike). Furthermore, I also think it's fair to require that such licensing be at no, or at least low, cost. I don't find it important, however, to accommodate a licence which has artificially created a conflict with proprietary software by disabling the defensive power of intellectual property.

For patent libraries to act in a defensive capacity, sub-licensing CANNOT be automatic, as required by the GPL. Furthermore, I think it is rather draconian and unnecessarily dismissive of the innovation provided by proprietary companies to insist that any intellectual property be licensed at no cost. As noted in my article opposing software patents, companies such as IBM were built on the foundation of judicious use of the patent system. Of course, I think that the dangerous potential of software patents far outweighs any possible gain from proper use of such patents. However, short of abolishing software patents (which would be very hard to do, and either way, won't happen tomorrow), governments can walk the line between the dangerous and the useful by requiring legally binding, low-cost licensing regimes for important and useful intellectual property.

Lots of innovative companies will attempt to leverage their state-granted monopoly rights over ideas (a.k.a. "Intellectual Property") as a means of generating revenue. Governments can moderate the more harmful by-products of that power by securing legally binding, low-cost licensing contracts for useful, proprietary IP. They gain nothing, however, by discarding the benefits of fee-based protocols or data formats simply on principle, as what matters most is harvesting human innovation, wherever it might come from.

In summary, the problem GPL code has with licensing is self-imposed, and should not be a trump card which overrules use of IP which isn't automatically sublicensed or charges a fee for use. There are plenty of alternatives to the GPL that do not create an artificial conflict with proprietary software.

Conclusion
Proprietary software is an extremely successful business model. It has been very profitable, has attracted lots of investment, and has enabled software companies to create large numbers of well-paying jobs.

Many of the delegates in the pro-preferences camp lamented the lack of a domestic software industry and the need to send lots of valuable software capital overseas. It is important to recognise, however, that those large foreign software companies became centres of software innovation using the revenue-generation power of proprietary software.

Undermining that revenue-generation capacity is not the right way to encourage more domestic production. The right solution is to make no preference with respect to open source or proprietary software. Instead, favour open protocols and data formats, leaving implementation details, and business models, to software companies to decide.