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DHINAL - David Henderson Is Not A Lawyer |
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David Henderson, a research fellow for the prestigious Hoover Institution and a consultant to Microsoft, has written an article for Tech Central Station decrying government-subsidized copyleft (i.e., the GPL) software (The Free Software Lunch). Why is government subsidy bad? LawMeme looks at Henderson's claims:
This "viral" property effectively bars commercial software makers from incorporating ideas from GPL software - which is precisely what the ideologues at the Free Software Foundation had in mind.
Uh, no. You see, under copyright law, ideas are not protected, only expressions of the idea. This is known as the idea/expression dichotomy. Let me quote from the Copyright Act 17 USC 102(b):
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Contrary to Henderson's assertion, commercial software makers are free to incorporate ideas from GPL software into their products, they are simply prohibited from copying the actual verbatim code. In fact, because GPL software requires that source code be made available, access to the ideas is even easier. A commercial software maker would certainly be able to afford to write new code given the ideas in a presentable format?
Henderson goes on to decry effects on return on investment.
Building a wall between open-source and commercial software is bad public policy because it artificially reduces the potential return to government investment in research.
I don't know about you, but I'm not sure that "return on investment" is the proper criteria for government-funded research. If that were the case, why shouldn't the government hold the copyrights and patents it subsidizes and license them to the highest bidder? That would maximize "return on investment" wouldn't it?
Let's play confuse copyright and patent law now:
Imagine where we'd be if pharmaceutical companies had not been allowed to use government research, and the development of drugs based on that research had been left to non-profits or government agencies. Thousands of people would be dead who are now alive, courtesy of some of today's "miracle" drugs. First, the GPL does not prevent commercial software vendors from adopting ideas from GPL software, see above. Second, the drug analogy is really bad since drugs are generally protected by patent law, not copyright. Copyright and patent are two related, but very different types of laws. Third, pharmaceuticals are different from the software industry because the FDA (thank god) requires extensive and expensive drug testing before products can be sold. The same cannot be said for software, so the economics are just a bit different.
Hmmmm...why is government-subsidized GPL bad again?
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Average Score: 4.52 Votes: 19

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"User's Login" | Login/Create an Account | 7 comments |
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Re: DHINAL - David Henderson Is Not A Lawyer (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, September 17 @ 15:20:02 EDT | see this comment at telae tabulae. |
[ Reply to This ]
Even Microsoft sells a product bundled with GPL code (Score: 1) by NZheretic on Tuesday, September 17 @ 21:22:26 EDT (User Info | Send a Message) | Microsoft's Services For Unix (SFU) is bundled with a version of the GPL licensed GCC developer toolset. |
[ Reply to This ]
Re: DHINAL - David Henderson Is Not A Lawyer (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, September 17 @ 21:55:13 EDT | I agree with your assessments of Henderson's faulty arguments, but why not throw in a few reasons why the government should be embracing the GPL or some other open source format?
The government obtaining and encouraging free (as in beer) software makes much fiscal sense to this taxpayer.
It also makes sense that the government ought to be held accountable to the software it runs in the service of its citizens. There is no real way to make this accountability complete without strictly public access to source code.
In particular, the GPL ensures that as the most useful software develops and improves under market conditions, developers can still get at it to make it better.
And don't get me started on the proprietary formats issue!!! ;-)
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[ Reply to This ]
Re: DHINAL - David Henderson Is Not A Lawyer (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Thursday, September 19 @ 11:53:19 EDT | This kind of reminds me of the Mundie Rebuttal Bonanza. :)
Anyroad, here is mine.
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[ Reply to This ]
- Rampant Laissez Faire by Anonymous (Name Withheld on Advice of Counsel) on Friday, September 20 @ 00:22:11 EDT
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