Innovation or Patent Colonialism
The second annual Open Source Business Conference (OSBC) in San Francisco brought together key leaders of OSS, as well as players from the opposition — under one roof, to examine the latest trends and business practices in open source. OSBC offered a unique opportunity to discuss, absorb and influence developments that impact adoption and mainstreaming of OSS across the globe. VCs, industry leaders, managers and lawyers all took up unique vantage points along the conference line “Innovation in Open Source”. Vendors such as IBM, CA, Sun, and even Microsoft, advocated their own best practices. Some, louder than others.
“OSS means freedom, OSS means business. OSS means war!”
Amid the rattling of sabres, the license bashing and the competitive business posturing of many of the key players, one of the most important voices on the modern software battlefield was Lawrence Lessig whose keynote lecture was on “Clearing the air about Open Source”. Lessig was electrifying. He warned that after the change of US government in 2000, the new administration invalidated ten years of antitrust litigation by simply changing the rules — which in turn helped dismiss the anti-trust proceedings against Microsoft. This action in itself strengthened the monopolist’s strategic mission to acquire an arsenal of software patents as fuel in its war of hegemony to control competitors as well as technology innovation, and business in general. So far, Microsoft has mostly used its patent war chest to defend its product space and market share, but that could easily change as their needs do. Lessig observed that monopolists would spend their current net worth to defend their turfs and crowns. And Microsoft is no different.
Lessig challenged the industry and innovators to think about the consequences of Microsoft succeeding in its patent warfare, and thereby stifling Open Source, innovation and freedom. The US software industry desperately needs to push legal reform in order to maintain free competition and avoid crippling patent warfare and frivolous litigation from monopolists. The danger is being felt all across the world — in the US as well as in proxy battlegrounds like Brazil and India. Developing countries are being pressured constantly by Microsoft and its supporters to believe that free software is more expensive than its own products and services. Brazil, a key battlefield in this war, has officially countered that whatever the expense, free software supports its national interests in helping build a local infrastructure, promoting local innovation and nurturing its fledgling economy. Lessig noted that Brazil believes strongly in building a free culture — free to innovate, free for expression of creativity and free to grow. He warned that in a world dominated by lobbyists and lawyers, the open source community and industry must follow the pattern of Brazil. The OSS community has no choice but to fight to preserve its rights to create open software, to innovate and to grow.
In the end, Lessig advised the open source industry to follow a “republican-like centrist” way of controlling software patents. Every software patent ought to be put through a rigorous economic examination and proved to do more good than harm, and be discarded if demonstrated otherwise. Presumably few, if any, software patents would survive under the bright light of objective scrutiny.
OSBC represented a small skirmish in the war over whose software will dominate the information age. Much larger battles, with risks of far greater casualties, loom, especially in the developing world. For example, in India, as elsewhere, monopolists are in pitched battle against competition and free markets. Global pressure tactics are being used on a local but still lethal scale. As a result, India recently capitulated for a limited time to the WTO, Microsoft and other special interest lobbies, to allow software patents to be recognized and enforced. But as IP monopolists with deep pockets continue their crusades, how long can countries like India defend themselves in a war of unequals? How long will the rights to innovate, promote local businesses and build infrastructure survive? As Lessig eloquently argues, the only way to stop patent colonialism, is to reform the local legal process to promote competition. And continue to adopt, innovate and grow healthily with open source software.