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James Boyle's Ultimate Answer to "Why Open Source is Unsustainable"
Tuesday, November 02 2004 @ 01:42 PM EST

Don't miss this extraordinary article, the complete answer to Richard Epstein's article on FT, "Why Open Source is Unsustainable," by James Boyle, William Neal Reynolds Professor of Law at Duke Law School, a board member of Creative Commons and the co-founder of the Center for the Study of the Public Domain.

This article is to me the template showing how to answer a provocative article with style and grace, while completely demolishing, very politely, the arguments raised. He doesn't swear, yell or hit below the belt with personal invective. Yet he does win, I think you'll agree. It takes a lot more effort to write that way, but the satisfaction is greater, because you've reached everyone you can, without offending anyone.

So, he's my hero now and my model. I like his hat too. Mr. Boyle: if you ever want to write anything for Groklaw, we'd be so honored.

He begins by pointing out that you can tell if the GPL is flawed by following two simple guidelines: "Listen to the market, and assume judicial common sense."

He then tells us something that made my jaw drop:

"Amazingly, IBM now earns more from what it calls 'Linux-related revenues' than it does from traditional patent licensing, and IBM is the largest patent holder in the world. This does not seem like a community that is declining."

No wonder IBM is willing to fight SCO all the way. Had SCO done the math, they could have predicted the reaction. It also implies to me that if push comes to shove, software patents are eventually going to at least have to be modified to accommodate FOSS. Money interests have an inevitable logic that is as predictable as the trajectory of a spaceship to the moon. There is one other prediction that I think flows from this: monetizing IP by means of SCO-like lawsuits is a business model that is unsustainable. It was invented in those wacky '90s and now it's passe and will die off. SCO is Exhibit A of that new truth. SCO's doom is the marker in the sand that the tide has turned.

Here is the part I found the most telling, at the very end, where he addresses Professor Epstein's argument that governments should not favor free software but should be neutral. Oh, yes, says Mr. Boyle, by all means let governments be neutral, and note what he says the change such neutrality would result in when it comes to patents:

"I think Prof Epsteinís neutrality principle is a little narrow. There are many benefits to society as a whole that governments could rationally factor into their decision in picking open software - including creating a social good that other citizens can share, and producing specific competition (lower software prices for my department) and general competition (lower prices for the society as a whole.) But let us say that we adopted his principle. Would it change state purchasing policies? I donít think so, for the reasons given above. What would it change? There, I think the answer is clear. The key implication of a principle of neutrality would be this; it would change our intellectual property policy. If we were truly neutral, we would be as concerned about the impact of software patents on open source software development as about the impact of illicit copying on closed source software development. We would spend as much time thinking about how to encourage distributed creativity as we do about encouraging proprietary 'top-down' creativity. That principle of neutrality would be worth adopting. Where do I sign?"

This is one of those times I wish copyright law wasn't so strict because I would like to highlight many more points that stand out, but instead I'll encourage you to vist FT and read the entire thing.

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