Devil's Advocate: Intellectual property and open source

In the third and final part of his series on intellectual property rights director at Black Sheep Research Martin Brampton argues in favour of open source software - as a different form of software distribution, not one without rights.

I've looked at some of the drawbacks of investing too many rights in intellectual property. Open source is often seen as the antithesis of the commercial software business. Is it, as some claim, just an offshoot of the mainstream? Or does it have a much more fundamental role?

The claim that open source is somehow parasitic makes little sense if we look at the history of software. In the early days, people wrote their own software because computers came with only the bare minimum needed to start writing programs. Then, ideas were openly shared. Many of the most important algorithms were published in Communications of the ACM and anyone was free to use them. As hardware and software became more complicated, vendors included operating systems and compilers along with the machines. It is only more recently that software has become a substantial business in its own right.

Now open source is not opposed to IPR. In fact it makes very clever use of IPR without attempting to exploit it in a restrictive way. While the fact that open source software costs nothing is often stressed, this is not really its key property. More important in the long run is the fact that the source code is freely available, yet is ingeniously protected. It can be further developed but anything based on open source cannot be exploited commercially. It can only have a continued public existence by re-emerging as open source.

This could make sense for a good deal of development. At one time, there was much talk about competitive advantage through innovative use of computers. Thompson Holidays was repeatedly cited for its initiative in providing travel agents with direct access to information and bookings.

That was an impressive story but as time went by it became apparent that few other examples were forthcoming. Indeed, there were contrary stories about companies that provided online access to their product information only to find their competitors could offer the same facility on better terms.

There is evidence for advantage through skill in using computer systems. American Airlines made its Sabre booking system generally available, arguing that commercial advantage came from the way that its staff exploited the system.

So why spend a fortune as the sole developer of software that has little likelihood of gaining real competitive advantage? Why not develop something then turn it into open source? Competitors who choose to make use of it are very likely to find ways to improve it. If they understand the drift of events those improvements will also be made public, thereby aiding the originators and so on.

After all, what is most crucial to business - is it basic office software? The obvious answer for most organisations is that the crucial software is directly connected with the line of business. It is directly involved in operational activities. For some sectors, there is a healthy software vendor community but others are poorly served. And even software vendors could benefit from open source. With collaborative development there is still a clear need for a range of services.

The effort to make profits out of products that are protected by IPR may well be anachronistic. By and large, the IT companies that have been most robust in recent times have developed a strong presence in the market for services. Take IBM, which is currently investing a billion dollars in Linux related developments. Products remain important but are steadily being overshadowed by an immensely successful services business.

Here in the UK, the NCC is keen to step in as the promoter of open source, making it a practical option for commercial and government organisations. Perhaps if we support them we can spend less money and at the same time have better software. And we can all take a pride in our own contributions to the open source movement.

** Martin Brampton is a director and founder of Black Sheep Research (http://www.black-sheep-research.co.uk ), an independent consultancy providing research, writing and speaking services on a wide range of business and technology subjects. Martin was previously a director at Bloor Research, and has worked with IT as a user and analyst for over 20 years. He is a frequent contributor to silicon.com's Behind the Headlines TV programme and can be contacted at silicon@black-sheep-research.co.uk.