- By Mikael Pawlo -
The number one full-scale experiment on intellectual property in history is
now in practice. I am referring to Free Software and Open Source. You may
subscribe to the Free Software or the Open Source school of thought. That is not
important for the experiment, as such. We are looking at an experiment that
will define the future of intellectual property. It will be an interesting
travel, and Microsoft is designing the passport.
It is often said that Rome gave civilisation the law. That may be true,
but someone else invented intellectual property law. According to S.M. Stewart, an acclaimed scholar on international copyright law, the early Greeks
and Romans had a developed notion of authorship, which was confined to the
desire of teachers and philosophers to be credited for their own teachings.
This was a moral question, thus not regulated in law.
Most agree that the first copyright law was the English Statute of Anne of
1709. The system used today in most Western societies derives from the
Berne Convention of 1886. Some things have changed over time, but only in
favour of stronger protection of the author and the copyright holder. The
one common principle is simple: With few exceptions, you need the
permission of the copyright holder if you want to make new copies or create
a work deriving from the author's work within 70 years of the death of
Not much happens in modern times with the statues built by the Romans, who built a great foundation of contract law and other essentials of civil law. Details may vary
over time and jurisdictions, but the basics stays without much controversy.
Copyright, however, is widely debated these days. Lawrence Lessig, Jessica
Litman and Siva Vaidhyanathan produced the most famous recent works in
area. You may think that the time for copyright protection -- life plus
70 -- is too long. You may think that fair use is too limited. You may
think that Dmitry Sklyarov should never have been prosecuted under the
U.S. Digital Millennium Copyright Act. You may think all these things, and Lessig, Litman and Vaidhyanathan very eloquently argued them all, but I think the issue of copyright protection of computer programs -- of code -- is different in principle. Computer programs should never have been protected as literary works in the first
place. That just happened. But now it is time for a change, I think the
great experiment that we all take part in, is a wonderful way -- through
freedom of contract -- to experiment toward a new legal take on code.
I am not a copyright radical. I think copyright is good and that society
benefits from copyright. Still, I am convinced that all companies
eventually will open their code in one way or other. The lesson learned
from philosophers like Richard M. Stallman, Eric S Raymond and Bruce Perens
is that open code is good. The different philosophers have different
benefits and flaws in their theories. You might be a friend of the BSD
license, the GNU GPL or of any license approved by the maintainers of the
Open Source Definition. That is not important. The experiment will prove
that the Free Software and Open Source advocates are right -- no matter to
whose points of view you subscribe -- when it comes to the fundamentals
I choose to put together under the name "open code." With open code,
I mean that the source code is available to the user and the development of
the computer program is decentralised.
We have already learned that open code is good for security, speed of
development and interoperability. Lessig has even taught us that code is
more important than law, when it comes to free speech in computer networks.
Further, open code is good for consumer and customer confidence and trust.
These are a few of the basics I choose to call open code. Would you trust a
product that you are not even allowed to disassemble? What if the product
carried all your personal data? The trust argument is, in my opinion, the
strongest argument for open code.
In short, open code is good for businesses. This is why most companies --
including Microsoft -- will eventually open their code, even though pure proprietary
players today may have a hard time grasping the open code philosophy. I
find it hard to believe that consumer advocates and organisations working
for civil liberties, like the ACLU and EFF, will accept very far-reaching
technologies like Microsoft Passport, without an open-code solution.
Microsoft Passport is brilliant in its design. It will solve the problem
that is allegedly killing dot-com companies all over the world. Without
making life online hell for the user, you will easily manage micro-payments
and logins for content providers and e-tailers all over the world. You
might like that and you might not, but a lot of companies have been waiting
for this solution and I believe it could be successful, if companies and
customers trust in Microsoft Passport. But why should we trust Bill Gates
and Steve Ballmer? What have they done to gain our trust? They have done
nothing of the kind, and that is why Microsoft Passport needs to be open.
We need to know what the code is doing, how the data is stored, and we
need competition and interoperability on the Microsoft identification
With Microsoft Passport, Microsoft will not only open its code, but also a
can of worms. I am not a great fan of slippery slope argumentation, but if
Microsoft could open its Passport technology, should it not be able to open
more vital technologies? The EU and the U.S. Department of Justice should have something to think about here.
In the end, I think we will see a new intellectual property right for code.
It will not be copyright, nor will it be patent protection. It will be a
right sui generis, a right specially designed for computer programs. This
new right will deal with the issues the full-scale Free Software/Open Source experiment is solving now. Microsoft is --probably unaware of it -- designing the passport to the
future of open code.
Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl.
On nights and weekends he works as an editor for the leading Swedish open
source and free software publication Gnuheter, which he co-founded with