[Discussioni] Epstein vs Boyle - Why open source is (un)sustainable

Andrea Glorioso sama a miu-ft.org
Dom 7 Nov 2004 23:06:32 CET

Ciao a tutti.


Richard Epstein: Why open source is unsustainable

  Intellectual property  often creates strange  bedfellows on the left
  and the right  sides of the  political spectrum.  On the left,  many
  socialists  oppose private property in all  its forms. On the right,
  some  libertarians,  such as  Tom Bell  of  Chapman  Law School, are
  deeply  suspicious of the use of  intellectual property to block the
  right of other individuals to think and speak  as they choose. While
  they  regard private property  as acceptable  for physical resources
  that cannot   be used by everyone   at once, they   draw the line at
  intellectual property, which can be copied at close to zero cost.

  All this anti-IP rhetoric begs one question: how do we produce IP in
  the first place?  On that question, the open source movement - which
  has already generated some real  successes in both operating systems
  and various    kinds   of servers  -  offers   its  own  distinctive
  institutional response.  The   movement, whose principles  have been
  expertly  analysed  by James DeLong   of the  Progress  and  Freedom
  Foundation in his paper "The Enigma of Open Source Software (Version
  1.0)",  is organised around three  tenets.  First,  access to source
  code (the master  plan that generates  the  zeros and ones  to which
  computers respond) must be  made available to all. Open availability
  allows other individuals to tinker with the original program with an
  eye  to  improvements in    its   operation or  extension   in   its
  use. Second, once  someone incorporates open  source software in his
  own  programs, then any licence  that he issues cannot charge others
  for  its use or restrict  them  from making further modifications of
  the program.  Third,   each  licensee agrees that    all  subsequent
  licensees may use  or  modify  on  the  same terms  as  the original

James Boyle: Give me liberty and give me death?

  The price of liberty is death,  at least so  far as free software is
  concerned. Or so goes the argument in Richard Epstein's column, "Why
  open source      is unsustainable".   It  is   a  characteristically
  provocative title, but I am unconvinced.

  The article   gives two main reasons for   open  source's doom.  The
  first is an attack on the vagueness and, somewhat paradoxically, the
  imperialism Professor Epstein sees  in  the General Public  Licence,
  the licence common to  most "free software"   and much "open  source
  software."  Prof    Epstein claims that  the   licence  is silent on
  certain key issues, vague on others and likely not to be enforced by
  the courts in certain cases. I disagree with  most of his arguments,
  and think   the fears are  exaggerated.  An  extended analysis would
  require a law review article, not an Op-ed. How is a reader to judge
  whether  there are deep flaws  in the licence?  Two handy guidelines
  suggest themselves. Listen to the market, and assume judicial common



Andrea Glorioso             sama a miu-ft.org         +39 333 820 5723
        .:: Media Innovation Unit - Firenze Tecnologia ::.
	      Conquering the world for fun and profit

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