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Freeware versus Payware
Lessig’s defense of free software reads more like a disquisition on good and evil than a measured assessment of its benefits compared to proprietary alternatives. But the “four freedoms” contained in the GNU GPL, which governs the way much free and open-source software is distributed, weren’t inscribed on tablets brought down from Mount Sinai. They were created in the 1980s by Richard Stallman, an MIT computer scientist with a particular social agenda. Lessig describes these four freedoms and their functions cogently enough in his essay. The bottom line: free software means free and open access to a program’s source code.

It sounds innocent enough. But as with every contract or license, there’s a catch. No legal system ever creates unlimited rights, and every freedom has its correlative duties. In the case of the GPL, the kicker is that anyone who incorporates open-source software into his work must release any derivative work under the same license. The precise language is as follows: “You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.” The word “must” says it all. Content protected by a general public license is just that, licensed. Software distributed under the GPL should not be confused with ideas, writings, and inventions lodged happily in the public domain, available for all to use as they see fit, without any restrictions.

The GPL, in short, is vintage capitalism. Stallman created his own software from scratch, and the ordinary rules of property and contract let him license that software on whatever terms he chooses, with no questions asked. Those who don’t want to play by the rules of the free-software community are free to do business with Microsoft. Likewise, Microsoft is free to say, “Forget that free-access stuff: you can license our software, but you cannot see all our source code. If you don’t like our conditions, then you may switch to some open-source product.” Take-it-or-leave-it works both ways.

Why, then, prefer software bound to Stallman’s particular mix of freedoms and restraints to software that is proprietary or in the public domain? The defenders of free software often claim that their GPL inspires production and creativity, while proprietary software encourages secrecy. But this is a false opposition. The law of trade secrets can also inspire creativity; it recognizes the premise that some people will invest in a new invention only if they can retain the exclusive right to control its use. They can keep the code dark and sell the products made with it; or they can license the use of the code under a confidentiality agreement. Protecting trade secrets ensures that original creators are rewarded for their work. By contrast, open-source projects reward those who contribute to the code later.

So which plan is better? Perhaps the choice is not so stark. IBM makes millions on its database and server software yet actively encourages its customers to use the open-source Linux operating system. Sun Microsystems is relicensing its Solaris operating system under open-source terms in order to let its own software developers tap into the thriving open-source community. Even Microsoft shares its code, on a limited basis, with outside developers of Windows programs. If the copyleft movement (as it sometimes likes to call itself) requires that all derivative work be governed by the GPL, that’s fair enough; developers know the terms of the deal. Yet proprietary firms can profit from similar networks of license agreements, albeit agreements that take a different form. The state’s job is to enforce both sets of arrangements as written (with the caveat that private contracts are invalid if they create monopolies in restraint of trade).

We can now see why Lessig’s homage to free software is at odds with the principles of a free society where people can choose whatever business arrangements they prefer. We shouldn’t praise the Brazilian government for “pushing itself and the nation to substitute free software for proprietary software.” We would be equally wrong to urge the Brazilian government to promote proprietary software. In free-market societies, it is wholly illiberal for governments to take any side in controversies involving varying business models. A government’s role as a neutral arbiter is compromised whenever it engages in propaganda to persuade folks to prefer one type of contract to another. By putting its thumb on the scale, it makes true competition impossible. Arbiters cannot be cheerleaders.

The same principle, I believe, applies to the state’s own procurement decisions. Governments have fiduciary duties to their citizens similar to those that boards of directors owe to shareholders. Their job is not to satisfy their own ideological predilections; they should buy the software that offers the best combination of price and quality. The great threat to free culture is not proprietary software. It is the dogmatic insistence that one form of industrial organization is a priori better than its rivals.

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