Who Uses Open-Source Software: Are Some Scholars Late to the Party?

Twice a year this Kat shares the podium with an esteemed IP colleague as we jointly lecture the new batch of articled clerks on principles of IP law and their application in practice. One of the topics that always draws particular interest is the topic of open-source software. The attraction seems clear enough. Over and against the commercial model resting on the licensing of proprietary software, the open-source model, in all its variations, challenges the young lawyers to think about how copyright can be employed commercially in a quite different manner.

What serves as a point of discussion for our articled clerks underscores the more general question -- why do people select open-source software over proprietary software? A recent article, "Who Chooses Open-Source Software", by the distinguished Stanford professor Mark Lemley and his co-author Ziv Shafir (The University of Chicago Law Review, vol. 78, Number 1), discusses this question. The context of their study is well-explained as follows:

"The rise of open-source software poses an important challenge to the classic account of the production of intellectual public goods. Instead of using IP rights to optimize monetary benefit, open-source production relies on IP rights to keep software,and any improvements or additions to it, free and widely accessible. Open-source software is provided to others for free; providers profit, if at all, not by selling the software or improvements to it but by providing consulting or other services.

Scholars vigorously debate whether open-source software represents a fundamental new means of collaborative production potentially extendable to other forms of human endeavor or an altruistic fringe to the dominant market-based model of production."

Lemley and Shafir pose the economic question on the basis of what kind of economic person is attracted to open-source software. Is he or she a rational economic actor, actuated by rewards expected to exceed costs, in which case "open-source production is likely to be limited to the creation or relatively low-cost or small scale products ....?" Or, to the contrary, do we have a situation in which the actors "are collectively motivated to create nonfinancial incentives, of if there is a sustainable market for the provision of services ancillary to open-source products", whereby the open-source is both scalable and extendable both within and beyond computer software only?

The authors consider these questions by exploring the kinds of use following the release by a biotechnology company (Affymetrix here), of similar software under both proprietary and open-source licences. The software provided by the company complements its product for use in certain DNA-based laboratory tests. Such a dual release strategy is apparently common in the open-source licensing world. For those who are interested, the details of the study are described in the article. Sufficient for this Kat's current purposes is a summary of the author's main findings and conclusions.

With respect to an analysis of publications that made reference to the software algorithm used for interpreting the results based on the Affymetrix product (for our purposes, open-source or proprietary software), the results were as follows:

1. Academic users are much more likely to use the open-source version of the software.

2. Commercial users made far less use of the open-source version and, even when they did, fully one-half of commercial users did so within the context of academic-commercial collaborations.

With respect to survey data of users of the Affymetrix product (which captured more non-academic users), the results were as follows:

1. There was no material difference between commercial and academic users as to whether open-source or proprietary software was being used.

2. For those who preferred open-source software, the two main factors are cost and the ability to modify the software. However, the differences between open-source users and users of proprietary software on these two parameters was only modest statistically.

3. Users of the proprietary software were more likely to mention the presence of an existing institutional licence and convenience of the software.

The implications offered by the authors based on these results reveal, not for the first time, that the "pure" legal view of the issue at issue differs from what seems to be going on in practice.

1. In practice, there appears to be a significant amount of mixing of both open-source and proprietary software. "Users [of the software studied] seem largely indifferent to whether the software they use is open-source or proprietary." Stated otherwise, "they seem to use those software tools as they will -- and not as the niceties of open-source contracts would suggest."

2. Those who make improvements seem to be indifferent to whether open-source or proprietary software is used, thereby apparently "ignoring the fundamental constraint of open-source software--that you release your software to everyone."

3. As summarized by Lemley and Shafir, contrary to what legal scholars might think, "[l]aw may matter to makers of open-source software [or not--IPKat], but it does not appear to affect the behavior of software users."

This Kat is grateful for these results because, quite honestly, they comport with his anecdotal impressions of how open-source software is used. Indeed, his colleague, who spoke to the clerks on open-source software, pretty much said the same thing to these young lawyers based on her rich experience in the field. Maybe what we need, à laJohn Le Carré, are more scholars who have come in from the open-source software cold.

More on John Le Carré here.