Intellectual property 2.0?

by Matt Asay

I was talking tonight with a friend that manages the medical arm of a large humanitarian organization. We were talking about poverty and he suggested that there are basically three things necessary to enable people to pull themselves out of poverty:
  1. Food and water. It's difficult to worry about building for tomorrow when you can barely make it through today.
  2. Health. In like fashion, it's very difficult to earn one's way out of poverty if debilitated by disease or other maladies.
  3. Security/safety.
My friend focused on this third thing. He suggested that most people overlook it, but that it's imperative to enable poverty-stricken people and societies to pull themselves out of poverty. Why? Because it's useless to plant if there's little chance of harvesting. There's little reason to build a product or render a service if the government or a neighbor will likely rip it away tomorrow.

Security matters. This is why governments are set up - to remove us from our Hobbesian existence ("nasty, brutish, and short") and give us the opportunity to reap what we sow. This is also why the US Constititution provides for intellectual property protection.

I've spoken against proprietary software in the past but, hearing my friend speak tonight, I think I should qualify my opposition to current usage of copyrights and patents in software. My contention is not that these are not necessary - they are. I firmly believe that it's important for software developers, just like farmers, land developers, etc., to be able to build something and be secure in their expectation of attempting to monetize their product. Microsoft, just like everyone else, needs to be able to invest in R&D with confidence that its money is not automatically wasted simply because the system rejects investment.

But what if this old version of intellectual property has been superceded? What if, in fact, one can get equal or possibly better protection by putting the same code under an open source license, rather than under a closed-source license? I'm not talking about relinquishing ownership of one's developments. On the contrary, copyright law is absolutely foundational to both traditional software licenses and to open source software licenses: open source is meaningless without property. You must first own it in order to assign copyleft-style distribution requirements.

Rather, I'm suggesting that perhaps we're entering a new phase in intellectual property (2.0), when our basic needs don't change (food, health, security), but the way we fulfill them does. I can still earn a living (to feed myself and my family) with open source, and I can provide equally (or superior) infringement protection (health) with open source. And, importantly, since open source depends on the same rule of law to guarantee security, I'm safe in my development, too.

All that changes is how I choose to monetize the software. Instead of charging for access to the software, I charge for access to a certified version of the software. Or to services around the software. Or the software as a service, itself (like Google,, or a range of others). In other words, I make the software experience more about experience and less about software.

This sounds like progress to me. I know that there are a wide range of companies tied up in IP 1.0, which will find the transition to IP 2.0 difficult. Microsoft need not be one of these. The company has been aggressive in trying to figure out open source and this 2.0 world. It just needs to keep moving in this direction.


2007-03-12 05:23:25
Actually, it's more like a much needed patch to IP If you look at the IP policies of the original constitution, a document written by prolific inventors and authors (Franklin, Jefferson etc.), you see a much more pragmatic IP policy than the current perversion of the laws in place today. One of the primary purposes of patent law was to provide protection to innovators in exchange for full disclosure of the technique, arguably an early open source approach in comparison to trade secrets. Also note that patents were constrained to practical implementations and not abstract concepts. In the same fashion copyright was constrained to a much shorter duration(14 years with an 14 year extension if the author was alive), with expired works falling into the public domain.
Also keep in mind that at that point, corporations were severely constrained and generally had specific expiration dates.
If we now fast forward 200+ years of lawers gaming the system. Patents now include algorithms and business models and are often extended by complicated extension procedures leading to patent trolls and the supression of innovation by ludicrously broad abstract patents. The Sonny Bono "Mouse Protection Act" extends copyright to 70 years past the death of the author and 95 years for corporate works for hire, in themselves an atrocity. Many open source innovations such as the GPL and creative commons license are merely adaptions to prevent predation in this environment. Arguably, the founding fathers would probably be harder core than Stallman if they were alive today.
If we reverted to the original terms of copyright we'd be an awful lot closer to IP 2.0
2007-03-12 08:21:10
There is plenty of money in service, support, training, bug bounties, feature bounties, and product bounties (patronage). There is no moral justification for "licensing" or "royalties". People should be paid to work, not for having once worked.

[wipes spittle from screen]

Stephen Pariah
2007-03-29 14:40:37
i'm flattered you used my picture to prove your point and although i'm not sure what you're talking about, i'm pretty sure i agree with you.x