Government support of open source falls short

Two news items over the last week signalled to me that the benefits of open source, open data, and other artifacts of the meshed Internet society are making it through to policy makers. A new section of the White House website and a speech by a European Commission political prove that progress is under way. But when it comes to legal support, both stop short of advocating real open innovation.

Open source spans the Atlantic Last week, the White House launched an unusual website that offers a glimpse of the Administration’s thinking about IT. The White House Developer Page (captioned “Connecting citizen developers with the tools they need to unlock government data”) provides a catalog of resources available to software developers to be able to manipulate data about the workings of government. With sections on open government, open data, and open source, it’s clear that the benefits of empowering citizen-creator-consumers appeal to the Obama administration.

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The section on open source is especially interesting. The White House has opened up the source code to the Petitions website and to the mobile apps for Android and iPhone, all at GitHub. As a sophisticated user of the Drupal open source content management system, the White House has contributed several improvements it created for Drupal back to the project, including useful modules to support Akamai for content distribution and to implement free-standing link shorteners. They say:

We believe in using and contributing back to open source software as a way of making it easier for the government to share data, improve tools and services, and return value to taxpayers.

Meanwhile, I attended a conference in Brussels at which Neelie Kroes, a senior vice president of the European Commission, announced her plans to earmark 5 percent — maybe more — of the Commission’s budget for open and innovative solutions from small and medium-size businesses while also seeking ways to stimulate more open innovation. As if anticipating her move, the French government signalled plans to promote open source adoption and allocate the money saved on licenses for investment in open technology.

Kroes has a record of intelligent advocacy of open solutions, especially open standards, and was the Commissioner responsible for sanctioning Microsoft following its antitrust conviction in Europe. This is not the first time Kroes has been an advocate of open source, and her stance has previously been rewarded with a cabinet portfolio in the European Commission with responsibility for Europe’s digital agenda.

These moves on both sides of the Atlantic reflect a maturing understanding of the importance of open source and open innovation. The most important aspect of open source — as well as open data, open hardware, and open access to research — is not to save money, but rather to empower innovation by removing the need to ask permission to build on the innovations and discoveries of others. When this happens, innovators gain a new flexibility and a new power. Open source provides the steps making it easy to climb on the shoulders of giants.

Permission still required These steps toward openness won’t be enough, though. The liberating effect of not needing to ask for permission to innovate also explains why the lumbering, out-of-date patent system is such an obstacle to open innovation.

By allowing patent holders to reach into other people’s innovation and claim a share of their work on the basis of no more than independently occurring similarity, the need for “permission to innovate” is reintroduced. It’s also the reason why open software standards — especially for interfaces — cannot be allowed to contain patents on any terms that require a relationship with others in order to implement the standard.

Once again, the key dynamic of open source is destroyed: the freedom to innovate without asking permission, without requiring a relationship with anyone or anything else to proceed. A new report from the Congressional Research Service (CRS) makes clear the problem of patent trolls.

I hope the White House and the European Commission both recognize this tension and finally take steps to ensure the innovation-killing compulsion to have permission first because of a patent system designed for ploughs and not programmers will get fixed. There are activities on both sides of the Atlantic marked “patent reform“: in the United States, the Leahy-Smith America Invents Act and in Europe, discussion of the idea of a single patent applicable throughout Europe. However, both moves are actually the incumbent industries of the 20th century consolidating their control of markets, rather than a wave of new thinking for the 21st century and its meshed society.

Looking through the America Invents Act, it’s clear that almost every part is based on the assumption that individual innovators and small businesses in America need easier access to owning patents. According to the CRS report, the problem of patent trolls was understood at the time the Act was debated, but they apparently have friends in high places. The report says “the AIA contains relatively few provisions that arguably might impact PAEs, apparently because of lively debate over what, if anything, should be done about them.” Consequently, the Act does almost nothing to address the problem of patent trolls and the use of patents to stifle competition in technology markets. Reform it may be; radical it is not.

There’s some glimmer of hope, though. Section 30 of the Act says:

It is the sense of Congress that the patent system should promote industries to continue to develop new technologies that spur growth and create jobs across the country which includes protecting the rights of small businesses and inventors from predatory behavior that could result in the cutting off of innovation.

The result of that “sense of Congress” is that section 34 of the Act commissions a study on the effects of patent trolls on the American economy. The data gathered will be valuable, but the study is flawed as it only considers actual litigation by patent trolls. A significant part of the cost associated with patent claims by trolls against America’s businesses occurs before formal litigation is instituted. The cost of patent litigation is so astronomically high that any sane party will settle — under cover of a confidentiality agreement imposed by the aggressor — before actual litigation is initiated. To properly assess the cost of patent trolls on U.S. business, any estimate needs to also include pre-litigation settlements.

Open source advocates find it easy to be discouraged by the spectre of software patents, but these developments together suggest the winds of change are starting to blow. At the same time as leaders are recognizing the power of “open” to stimulate innovation, legislators are beginning to see the patent system is a poor fit for our emerging, meshed society of citizen-creator-consumers. Let’s make sure they know how much we agree with that sentiment.

This article, “Government support of open source falls short,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.