Open Sourcing: The Future of IP in the Face of the Digital Age

By Dan Billings, Jan 05, 2012 in P.O.V., Pop Culture

Have you ever discussed with your friends ways to improve your favorite video game? Have you ever wanted to make those changes yourself? Oftentimes, with the right resources and know how, you can make a considerable amount of changes to store bought products. However, because of current IP laws, those changes are usually illegal to make and certainly illegal to share.

Generally, when you buy a new computer program, there are dozens of copyrights, trademarks, and patents associated with the software: the code that the program is written in can be patented (under certain circumstances), the images can be copyrighted, and the name can be trademarked. All of these processes can be quite expensive. For example, the cost of obtaining a patent can range from $10,000 to $100,000, depending on the scope of protection that programmer prefers. Although this seems like an outrageous cost, the financial benefits of a patented piece of code could amount to millions of dollars. But, the years that the patent process can take and the amount of money required to do so could cause some innovators to miss a time-sensitive opportunity.

Intellectual property law, referred to as IP law, is a field of law that covers copyrights, trademarks, and patents. In the wake of Napster and P2P networking, protecting IP is a legal request in high demand. Traditional media companies have teams on-staff searching for ways to protect their property as well as catch offenders. However, similar to how Terrence Kole found himself out of his league when he started his own law firm in the comedy Kole’s Law, many recent law school graduates who enter a job market as IP specialists will find themselves in over their heads due to rapidly changing technologies and business models. With the Internet allowing an easy way to share many works that would generally be covered with IP protections – such as software, music, and books – many wonder if IP will have much of a future, especially if software companies decide to allow users to manipulate their software and redistribute it. Many are doing just that – some even giving away their products for free.

Kole’s Law – Episode 1

Open sourcing is a term that’s been around for over a decade – allowing users to bypass traditional IP protection in order to build a larger sense of community for creative individuals in many different fields. It can be applied to any number of fields, from cooking to biotechnology. Open source software, as it applies to the recent explosion in digital applications, allows you to adapt programs by adding new features, changing the code, and reshaping the software to fit your needs.

The Open Source Initiative is an organization built around educating the public about the benefits of open source software. They advocate the collaborative motives of bringing people together to design the best software possible for non-proprietary purposes. Participating companies provide the underlying code for the software at no cost and then advocate that users adapt, copy, and modify the program. In return, they ask that the users allow others to download, modify, and adapt the software that they created from the underlying code. One of the prime examples of open-source software is the operating system Linux. As an alternative to Microsoft Windows, Linux allows users to use, modify, or adapt the underlying source code for commercial or non-commercial purposes. More than 90% of the world’s supercomputers use Linux.

Another group at the center of the open-source movement is Creative Commons. Designed to reinvigorate the public domain, this non-profit group provides licenses to artists, writers, and programmers so they can disseminate their materials for free to the public. Creator Lawrence Lessig, a Harvard law professor, believes that traditional IP restrictions are obstacles for many creative individuals who can’t afford to pay for the legal paperwork. Through Creative Commons, the author’s name is protected, as well as the work. However, like the open source movement for software, many are concerned that these open licenses will erode the ability for artists to profit from their works as the market becomes flooded with free product.

Free open-source alternatives are available for many popular applications. Many people use Mozilla’s Firefox in lieu of Internet Explorer or Safari. This web browser grew in popularity because of its ease-of-use and versatile plugins. Similarly, OpenOffice is a free alternative to Microsoft Office. The program offers word processing, database, spreadsheet, and presentation tools that the user can download, modify, and distribute.

With such programs available and multiplying, many wonder how intellectual property law will keep up. If open source licenses become commonplace, will there still be a way to make money off creating valuable programs?

Although each open-source license is different, most do not allow users to profit off the use of the open-source software – a copyleft license, for instance, asks that the end user attach the same license to the after product. For example, if you adapt an open-source piece of code that is open to the public, under a copyleft license, you must also allow users to adapt your code for free. Still, even with all this free code, many individuals have built start-up companies around pieces of open-source software – looking to content, advertising, and ancillary uses to produce a profit.

Whether the long-term fears of open-source critics pan out, the marketplace of ideas appears to love the concept of collaborative works of software and art. And, with Android, an open source platform, currently growing exponentially in the world of smart phones, open-source software isn’t going anywhere. Intellectual property law will have to adapt or simply go extinct.

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Dan Billings lives in Mt. Prospect, Illinois. When he’s not running and listening to BBC podcasts, he’s reading comic books. He likes to consider himself a successful funny man, but that may only be true compared to the other legal writers that he spends his days with. On occasion, he writes on his own personal blog at rockthewesternworld.com.