Open source roundtable: Bruce Perens

Open source leader views software patenting as the No. 1 impediment to innovation

Bruce Perens, a longtime leader in the open source movement, is rarely remiss in speaking his mind on open source matters.

InfoWorld had the opportunity to speak with the creator of the Open Source Definition as part of its roundtable on the state of open source. Here's how Perens breaks down the key opportunities and challenges for open source in the years to come.

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Bruce Perens

Creator of the Open Source Definition
Co-founder of the Open Source Initiative

InfoWorld: What do you see as the most pressing challenges and opportunities for open source given the current tech climate?

Perens: The biggest problem facing open source, and software in general, is software patenting. Copyright is sufficient to protect the proprietary software folks, but they are threatened by software patents, too, as you can see from all of the court cases reported about them. As the situation exists today, it's very easy to get a software patent for something that isn't really an invention at all. What happens to the companies that have to defend themselves from an unjustly granted software patent? It can easily cost them $7 million in legal fees to win -- that figure is from the American Intellectual Property Law Association's Economic Survey. That's bigger than the entire funding of most startups and many ongoing concerns. So winning isn't economically viable for them, and their only real choice is to settle for whatever the plaintiff wants, whether there is any justice to that or not.

It is not possible today for a nontrivial program to be noninfringing on software patents granted in the U.S. There are just too many granted patents, on too many general principles that everyone uses. If enforcement of all of those patents was complete, there would not be a software industry in the U.S. at all.

The problem is even worse for open source developers, who aren't necessarily getting any income from their software and thus have no funds to pay lawyers and patent royalties. Tech experts and economists both understand there's a need for reform, but we haven't been able to make it happen politically yet. Part of the problem is that pharmaceutical companies are on the other side of the argument, not because they like software patents but because the law doesn't distinguish software from drugs or any other kind of technology. Of course, the pharmaceutical companies have lots of money to fight for what they need. We need to decouple software patenting from pharmaceutical patenting to win this fight.

This has started to be a real problem for open source developers. The big guys aren't the only ones being sued. There's a developer who makes, of all things, open source model railroad software (JMRI: Java Model Railroad Interface) who is a defendant in a patent case.

Obviously, open source is a new and very effective means of doing innovation. As a nation or world, we can't afford to throw out this new and powerful means of innovation because it conflicts with a bad law. We've got to fix the law.

IW: Where do you see open source heading in the next five years, especially with regard to development, community, and market opportunities?

Perens: I think that most reporters are misreading the economics of open source, and I hope that changes. You see a lot of publicity for companies that put open source in a profit center, like MySQL. But for most companies, open source is operated in an IT cost center. Many open source developers are paid these days, but the majority are actually working for customer, not vendor, organizations. For those companies, open source is a way to distribute the cost and risk of developing non-business-differentiating software that they need to support their own operations, but which isn't particularly visible to their customers. Those folks are interesting because they don't have the problems with sustainability or conflict of interest that the open source vendors can have.

So, I think the currently underreported and future trend is the shift of the development of non-business-differentiating software within companies to open source. Consider that if you are an IT manager, you can directly help your company's bottom line if you move as much money as possible to developing the software that is customer-visible and provides your company with a business differentiator against its competitors. But where do you get the other 95 percent of the software in most companies, which isn't business-differentiating? You participate in open source communities to build it, and thus spread out the cost and risk with your partners in those communities. You can share the development with them without hurting your company, because the software isn't business-differentiating.

IW: Does widespread adoption and commercialization of open source software create new challenges or pressures for open source projects?

Perens: A big problem facing many companies today is that they entirely depend on open source for their operations, and they haven't even begun to deal with that from a corporate policy perspective. I've met CEOs who haven't known they use open source at all, and then they have found out that all of their most critical projects depend on it.

When I wrote the rules for approving open source licenses, I didn't think that we'd get such a gold rush of companies that there would be 70 such licenses today. Dealing with the combinations of those 70 is too complicated. I direct my customers to three licenses that are compatible with each other and that provide for most of the business purposes of releasing open source. That's all you need.

I think our next steps might not be in software. Today, Wikipedia is one of the world's largest content providers, and it's open content. What else can we do like that?

IW: What are the next steps needed for open source as a software production methodology to reach the next level?

Perens: Well, we really are at the next step for a lot of software development. We define the best practices in software development today. After all, how many companies have software staff that are as motivated to work for them as the open source developers are motivated to make something that everybody shares?

Most proprietary software is written with the assumption that nobody's looking over the programmer's shoulder. With open source, the whole world is looking over the programmer's shoulder. Programmers write better code because they know that. Consider what happens today when a programmer is hired. How can any company tell much about the quality of their work? You can't get much good data out of their previous employer, if you can get any. But you can look at their open source code, and you can check out their interaction on the project's discussion lists and see if they are a team worker or a flamer. So, I think a lot of programmers realize today that their open source work is their résumé. That's a big quality incentive.

But what would I like to see for a next step? I would like to aim high. See that Macintosh desktop? It's got great consistency, it treats the user pretty well. Can we beat it? I think it's possible, but it would take strong leadership and a dedicated team.

When I left Pixar in 1999, Steve Jobs still didn't believe that open source could produce a good GUI at all. Two years later, he introduced Safari, which was derived from open source GUI work, while standing in front of a slide that said "open source, We Love It." I guess I won that argument.

IW: Open source now enjoys a rich and complex history, which is largely the result of trial and error over the years. What would you say have been the open source community's greatest missteps, or lessons learned?

Perens: It's a lot easier to talk about missteps of a single company or a single project. The open source community is like an entire economy of software developers or an entire software industry. No real industry has central leadership, it's made up of separate players going their own ways. That makes it much more robust than a single company could ever be.

I see the biggest mistakes as happening in law rather than technology, because they're the ones that are the hardest to fix. Some of them are in courts, others in legislatures. IBM brought the lawsuit that made software patenting legal in the United States. The U.S. patent office actually prohibited software patenting before then. Reversing that prohibition was a big mistake for the entire software industry and the U.S. economy. State Street Bank did the same thing for business-method patents. The U.S. passed DMCA as law, and has pushed it on other countries, and that's very anti-customer and connected with the misguided war on the customer being waged by the music industry. Those are the mistakes I'd fix, if I could.

IW: If you could wave your wand and create the perfect software "universe," what would it look like?

Perens: A level playing field for proprietary software and open source. I'm not asking for any preference whatsoever, just fairness and a right to exist and operate for both open source and proprietary software. Because I think that on a real level playing field, open source would win most of the time.

IW: There has been a fair amount of controversy, competition, and dissent within the various open source communities. Does this lack of agreement damage the long-term goals of open source, or would you like to see more of this?

Perens: This question is about seeing that open source is a much bigger thing than just one company, even if the company you're comparing it to is one of the world's largest. Is the United States damaged by the fact that it did not start out with just one presidential candidate and stick to that one? Of course not! Are we damaged because stores compete and there's more than one place to get most anything? Your Economics 101 student would know better. Competition, argument, and dissent are how we arrive at the optimal way to do things. If you want a trendy term, consider it a sort of prediction market.

One company, with one plan, can't do what an entire market can do. Marketing has no crystal ball. If marketing folks were that good at forecasting the future instead of designing products, they'd be at home trading stocks. So, what open source uses instead is the wisdom of an entire operating economy. We try almost everything, and we apply a Darwinistic filter to the result. The good projects gain a lot of attention, and the boring projects only waste one person's time. That is more effective at creating new innovation and getting it into people's hands than any one company with a plan can be.

Roundtable home page: The state of open source

Other roundtable participants
Matt Asay
Vice president of business development, Alfresco
Andy Astor
CEO of EnterpriseDB
Chris DiBona
Open source programs manager, Google
Sam Ramji
Senior director of platform technology strategy, Microsoft
Eric S. Raymond
Programmer, author, and open source software advocate
Dave Rosenberg
CEO and co-founder, Mulesource
Javier Soltero
CEO, Hyperic
Mark Spencer
Founder and CTO, Digium
Robert Sutor
Vice president of open source and standards, IBM
Zack Urlocker
Vice president of products, MySQL

Copyright © 2008 IDG Communications, Inc.

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