Open Source

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The term Open Source is often abused especially by politicians, who refer to various proposals for transparency or open public input on policies as being "open" or "open source", in an attempt to liken the process of making law to that of Open Source Software. This is a quite questionable metaphor, as the implications of changing a law or legal code are drastically greater and life-altering in most circumstances than mere changes to software code. There are exceptions, as legal scholar Lawrence Lessig notes, in architecture of the information infrastructure itself (routers, domain name handling, emailers) but most changes to software have nowhere near the impact of changes to the law.

The issue is complicated by the fact that Open Source Software is a very clearly defined movement characterized by specific rules about what is and is not an open source license. One of the most controversial terms is that no restrictions on field of use" can be applied. This means that all software is explicitly licensed for military purposes, spying purposes, selling environmentally and socially destructive products, hiding activities of companies, and anything else that opponents of moral purchasing may want to do. There is no legal recourse. It is a deliberate feature of Open Source to prevent any legal connection between the use, and right to use.

This is also a feature of Free Software. However, free software has also the Share Alike requirement that all changes or improvements be shared with all users - Free Software is where Open Source and Share Alike meet.

However, Open Source in general does not mandate any such requirement, and would not do so for music, texts, documentation or other works licensed. Some such licenses permit patenting and withholding of improvements from other users. When applying the Open Source Software rules to other works, one must conclude unfortunately that a great many practices that most would likely consider abusive are possible, and therefore, legally, inevitable:

  • wide distribution of harmful works with no civil legal capacity to restrict (though criminal penalties would still apply to malicious use, this is harder to prove, and many people believe civil law is more effective against viruses, worms and other harmful software)
  • extension and "protecting" of a work received in good faith from contributors motivated by goodwill, and its twisting and use and proprietary control by some entity that none of the contributors would have chosen to trust in advance, who extends and patents extensions to prevent those contributors from duplicating its improvements
  • repurposing of works contributed in good faith to activities the contributors would never ethically support (use in arms, for extinction, deforestation, war or suppression of human rights)

While there are few incentives to subvert operating system or database software, there are many incentives to subvert or gain advantage in the operations of online services - an issue the original FOSS movement never addressed. With no way to restrict these activities with civil court action, only technical means are available to subvert such subversion - wasting everyone's time in an arms race that is to no one's advantage. Conflict reduction theory suggests that if people object to each other's use, they should do it legally, and be supported in licenses and law to do it legally, not to take out their differences with each other on the level of war/sabotage.

To deal with these issues, there remain many goodwill-motivated licenses outside the Open Source framework: WarFTP for instance forbids military use, and, MySQL originally licensed "anyone but Microsoft". An attempt to characterize the variations and come up with a broader concept of Open Content, Common Content and a more rigorous definition of Share Alike is Creative Commons, which has produced some widely used licenses.

However, most of them are not Open Source and it would be wrong to simply characterize any goodwill-motivated license under that straitjacketed label. Accordingly, Open Source is a very poor conceptual metaphor for open government or public control of the law, and its use in this context should be considered propaganda unless very carefully analogized/explained.