April 6th, 2005
Lessig: A war against the freedom to innovate
Stanford law professor and free software advocate Lawrence Lessig called on the open source community to stand up and fight or risk being buried by patent-wielding legacy businesses with arsenals of powerful lawyers. "There is a war against the freedom to innovate and this community has done way too little to resist," Lessig said. "I am a puny, independent law professor. If you are depending on me [to fight the war] you are hopeless and lost," he added.
He pointed to Microsoft, which he said could spend more than anyone could imagine in defense of what he called its monopoly, primarily through arming itself with lawyers and defending its patents. "Microsoft believes a form of property [patents] to be their saving grace. There is a huge sucking sound as Microsoft fills its arsenal with lawyers," Lessig said during a keynote at the Open Source Business Conference.
According to Lessig, big, bad Microsoft wants to lock out competition, and the open source–what Lessig likes to call "free software"– community is the anti-monopoly. Despite the fact that Microsoft has mostly used its patents defensively so far, the company could switch to offense, he said.
His advice to the open source crowd was to stop sitting back and watching others wage the battle and to become part of the struggle to ensure that innovations don’t get eclipsed by the incumbents who want to stifle competition. "You could start simply with how much money and support you are giving to organizations supporting pro-innovation messages….More significant is to become part of the debate. The biggest problem is that the debate is dominated by lawyers and lobbyists who don’t have a direct stake in the outcome." He called for Republicans in the crowd to get involved, so that the Republicans in power can’t simply dismiss the liberal Democrats advocating change in the patent process and intellectual property regulations as "communists." He also said that the government should stay out of regulating business and innovation, and that software patents should undergo economic analysis to determine whether they would do more economic good than harm. "The extra expansion of IP law is a pure product of regulation," Lessig said.
After an impassioned speech from Professor Lessig, you might expect the crowd of several hundred open sourcers would be on their feet cheering and writing checks, but I didn’t see any such behavior. Indeed, the lawyers and lobbyists are raking in the cash, while the various parties with something to gain or lose grapple with the digitization of everything and regulations created for a much different era. The battle isn’t strictly about open source versus closed source software or whether piracy is an evil. That’s a given.
The issues Lessig raises have more to do with fostering an environment where the threat of lawsuits doesn’t stifle innovation and create an atmosphere of fear and uncertainty. Digital rights management and the rights of copyright holders are also part of the larger picture. Linux has proven so far that some legal threats (SCO) and market dominators (Microsoft) aren’t enough to squash free and open source software efforts. Many companies are building proprietary value, hybrid solutions on top of open source software components. Microsoft is increasingly competing with Linux on the merits of the products, along with vendor-paid research.
Ultimately, doing what is in the best interest of the consumers of software, content and services leads to a fair and equitable resolution. Defining what that "best interest" is, and getting those with a stake in the matter involved, as Lessig suggests, are necessry to move the debate along a productive path…
Dan Farber, editor-in-chief of CNET News.com, has more than 20 years of experience as an editor and journalist covering technology. See his full profile and disclosure of his industry affiliations.
