Commons and IT

(from Vocabulary of Commons, article 63)

by Venkatesh Hariharan

The commons and information technology

A paradigm shift in knowledge creation

The knowledge commons is an increasingly important part of our networked information society and the growth of the global Free and Open Source Software (FOSS) movement and the related, open standards movement, are the biggest examples of this trend. For policy makers, Civil Society Organisations (CSOs), and for those involved in innovation, it is important to understand the emerging paradigm shift.

The growth of Linux, one of the best known examples of FOSS, illustrates this paradigm shift. In September 1991, when Linus Torvalds, a student at the University of Helsinki in Finland, released 10,000 lines of code on the internet, nobody could have believed that it would spark off a revolution. In the fifteen years since then, the size of an average Linux distribution has grown to 204 million lines of code that runs on tiny embedded computers to supercomputers and everything in-between. It is estimated that the value of these 204 million lines of code would be approximately $10.8 billion. What is astonishing is that this enormous pool of knowledge has been created not by a private corporation but by a distributed team of volunteers scattered across the globe, voluntarily contributing their time to a project that resides in the commons.

Linux was released under the General Public License (GPL) created by the Free Software Foundation (FSF) which gives users four freedoms. The freedom to:

• Run the programme, for any purpose.
• Study how the programme works, and adapt it to your needs.
• Redistribute copies and share it with others and the freedom to improve the programme.
• Release your improvements to the public, so that the whole community benefits.

A precondition to these four freedoms is that the source code for the software is freely available. It is this liberal licensing system (called the share-and-share-alike license), combined with the growth of the internet that now connects 1.4 billion people, that led to the growth of Linux, FOSS and open knowledge artefacts like Wikipedia, the open source encyclopedia.

It is therefore no exaggeration to say that the FOSS principles of community, collaboration and the shared ownership of knowledge have led to a transformation in the way knowledge is created and distributed. This has profound implications for India and other developing countries. For example, linguistic groups in India have used the freedom provided by the GPL and other FOSS licenses to create Indian language user interfaces to FOSS. These initiatives take computing beyond the small English speaking elite to the vast majority of Indians, in an attempt to bridge the digital divide. The liberal licensing schemes of FOSS ensure that FOSS firmly belongs to the knowledge commons. In turn, this has enabled many public spirited individuals to build Indian language interfaces on top of FOSS, because they know that this work will remain in the commons, where it can be freely accessed by all.

If these public spirited individuals had built the Indian language interfaces on top of proprietary software, their goals would not have been served because the benefits of these efforts would have gone to the software vendor, instead of the commons. It is for this reason that researchers like Prof. Eric Von Hippel, Professor of Innovation at the Sloan School of Management, Massachusetts Institute of Technology, conclude that the FOSS model, based on open collaborative innovation, ‘is desirable in terms of social welfare, and so worthy of support by policymakers’. In the context of FOSS and the knowledge commons, it is important to talk of two related issues that have implications for the commons—the growing trend of patenting software, and the growing open standards movement.

Software patents

A patent is a state-granted monopoly on an invention, in return for disclosure of the idea. The original intent of the patent system was to encourage disclosure by the inventor in exchange for exclusive rights for a limited period of time to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. The regime of software patents began its major expansion in the 1980s in the US. Since then, software developers have been consistently arguing that software is better protected through copyrights than patents.

Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a programme, they may be liable for infringement of one of the more than 200,000 software patents in existence in the U.S. Even end-users who use software for routine, everyday activities may be liable for infringement. For example, McDonalds and 400 other entities were served notices for violating DataCard’s patent on ‘Method for processing debit purchase transactions using a counter-top terminal system’. In another case, a company (ironically) called Beneficial Innovations, sued the New York Times, YouTube and many other media organisations for allegedly violating its patent on ‘Method and system for playing games on a network’. Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole. In other words, software patents have lead to the privatisation of ideas that should have been freely available in the commons.

The problem is compounded by the fact that litigation is an expensive process. Dan Ravicher of the Public Patent Foundation points out that for a patent holder to send a cease-and-desist notice, all it takes is a post card. However, that inexpensive post card sets off an expensive chain of events for the defendant who will typically pay a lawyer USD 40,000 to get a legal opinion, around USD 2–4 million in attorney’s fees if the case goes to court and many millions more if the defendant loses the case in court and is required to pay damages.

The argument in favor of software patents is that patents promote innovation. The social contract between an inventor and society was that the inventor disclosed details of the invention in return for the patent, and this disclosure would lead to future inventions. However, the history of the software industry shows that innovation flourished long before software patents came into force during the 1980s. Some of the fundamental inventions of the computer age—the internet, compilers, spreadsheets etc—were created despite the lack of patent protection. It is therefore clear that patent protection is not necessary for innovation in the software industry.

In their book, ‘Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk’, Boston University professors, James Bessen & Michael J. Meurer, show that Murphy’s Law (‘If anything can go wrong, it will’) has been working overtime in the area of software. The authors dedicate an entire chapter to software and business method patents, which are particularly problematic because they account for almost 38% of all patent litigation.

The authors find that in the US, software patents are twice as likely to be litigated as other patents while business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say, ‘Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable’. They point out that patent on abstract ideas are often subject to multiple interpretations and are therefore more ambiguous. An example of this ambiguity is the e-data patent on ‘point of sale location’. In the IT industry, this is jargon for the cash register or location where the customer pays the cashier. When the US Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place. Thus, a patent filed 17 years ago when e-commerce did not exist, ended up causing several lawsuits.

The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another’s patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. Thus it really is not possible to eliminate the risk of a patent infringement lawsuit.

It is well known that the US has the most permissive patent system in the world. However, even in the US, there are signs that the pendulum may be swinging the other way. In the recent Bilski case, which dealt with a method of hedging risks in commodities, the US courts ruled that abstract ideas which are not tethered to a device cannot be patented. The decision reversed the 1998 State Street decision that opened the floodgates for software patents.

As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The act of granting a 20 year exclusive right to profit from an idea to a private entity needs to be weighed against the cost that it imposes on society. Since software and business method patents prevent independent invention, do not function well as a system of property, lead to increased litigation, and reduce social welfare by detracting from the commons, India must comprehensively reject it.

In the European union, a move to patent, ‘computer implemented inventions’ was thrown out in 2005. In India, section 3(k) of the Indian Patent Act says that, ‘A mathematical or business method or a computer programme per se or algorithms are not patentable’. In the discussions around India’s Draft Patent Manual, the interpretation of the term, ‘per se’ has been the most contentious one. Given the lessons of history and considering the amount of litigation that software patents have created in the US, India must amend its Patent Act, drop the term ‘per se’ and clearly state that ‘A mathematical or business method or a computer programme or algorithms are not patentable.’

Open standards

As the French revolution swirled around them, French scientists set out on an arduous seven year long journey to measure the earth in an effort to define the meter as ‘one ten-millionth of the distance between the pole and the equator.’ Despite the stupendous efforts involved in defining the meter, the French scientists involved in the project were clear that the standard thus derived would be placed in the commons ‘for all people, for all time’. They were driven by a conviction that standards are common protocols among people and should therefore belong to everyone and should not be treated as private property. This conviction helped establish the meter as a global standard.

It was a similar nobility of thought that drove Tim Berners-Lee to ensure that the standard he invented that enabled the explosive growth of the World Wide Web, HTML, was royalty-free and freely implementable by anyone. The purpose of open standards is to include and not exclude. As we have seen from the growth of the internet, open standards bring tremendous benefits with them. Today the internet has more than a billion people who use it as a platform to socialise, communicate and transact. Common, unified standards like HTML have enabled the internet to grow rapidly. Since the specifications for HTML are freely available in the commons, anyone can create tools that create (encode) HTML and tools that read (decode) HTML. Software developers, website designers, internet portals, social networking sites, bloggers, photo sharing sites and many others use HTML as a global means of reaching out to others.

This would have not been possible with proprietary standards because that data is accessible only through a specific software to the exclusion of other software. For example, on the website of the Ministry of Company Affairs (www.mca21.gov.in), you can transact your business (registering your company, submitting information to the government etc.) only if you use a proprietary browser manufactured by a well known proprietary software company. The website has been built using proprietary software development tools and proprietary standards. If users try to access this website using, say the Mozilla Firefox browser, that is rapidly gaining popularity, they cannot transact any business with the government through the MCA 21 website. This reduces choices for users and forces users to use expensive proprietary software programmes. Indirectly, this amounts to endorsing the business of a proprietary software company. A better alternative would be to create websites using royalty-free open standards like those specified by the World Wide Web (W3C) Consortium, that users accessed through browsers of their choice.

One of the unintended consequences of the digital revolution is that users have often found their data locked up in proprietary file formats, which deprive them of the right to encode and decode their own data. For example, users of a popular proprietary word processing programme are dependent on the software vendor’s programmes to access their own data which is encoded in a secret format known only to the vendor. In other words, you own the data, but the keys to unlock it belong to your software vendor! Software vendors have often exploited this lock-in situation by changing file formats from one version to another and thus forcing users to keep upgrading their software. Clearly this is an untenable situation.

It is a fact that the life of the data is often much longer than the life of the software which creates it. Twenty years ago Unix ruled, today it is Windows, tomorrow it may be Linux and day after it may be a software that has not even been imagined today. If data is tied to software platforms, we will need to recreate the data every time the software changes. This is neither practical nor desirable. For example, land records last for over four hundred years. If we take the average lifespan of a software programme as four years, this means that the data locked in proprietary file formats might have to be ported or recreated a hundred times for it to be available to future users. The only practical solution therefore is to clinically separate the data from the software that created it. This what the open standards movement seeks to achieve by giving users the freedom to encode and decode their own data.

Patents and standards are related issues because most vendors control standards by filing patents around these standards, and charging royalties for the usage of these patents. The other method of controlling standards is through trade secrets. The indiscriminate manner in which software patents are granted hang like the proverbial Damocles sword over open standards. Tim Berners-Lee, inventor of the World Wide Web and a great champion of open standards told Wired magazine in an interview on web services that, ‘My fear is that significant standards will be covered with patents, and if so it’ll just kill development. A lot of these [proposed] vendor patents are ridiculous, but the fear and uncertainty over them is there.’

The World Wide Web Consortium (W3C) that Berners-Lee leads, says that, ‘In order for the web to reach its full potential, the most fundamental web technologies must be compatible with one another and allow any hardware and software used to access the web to work together. W3C refers to this goal as ‘web interoperability.’ By publishing open (non-proprietary) standards for web languages and protocols, W3C seeks to avoid market fragmentation and thus web fragmentation’. Imagine where the web would be without open standards!

Open standards are the foundation of our IT infrastructure and it is therefore important that these standards should be free of encumbrances and freely available to all—now and well into the future. It is therefore a wonderful development that India’s Department of Information Technology has clearly specified in its Policy on Open Standards for e-Governance that a single, royalty free standard will be used for storing India’s e-governance data.

Governments have a higher level of accountability because they hold citizens’ data in trust. Apart from the governance of data, the government also has the larger responsibility of advancing public interest through its actions and policies. The purpose of an open standard is be inclusive. A proprietary format does the exact opposite: by excluding users unless they (or their device manufacturer or software developer or system integrator) pay a royalty using that proprietary standard. Therefore India’s public interest lies in the advancement of open standards and the rejection of closed, proprietary formats. This is a historic development, and one that demonstrates India’s leadership in the ICT field. While Indian policy-makers have taken some of the right policy steps in areas like software patents and open standards, one hopes that they will now accord positive recognition to the knowledge commons (and the collaborative innovation enabled by the commons) by giving FOSS the status of a public good. That would be appropriate for a country, where a hymn to Saraswati, the Goddess of Knowledge, says,

Wonderful is your gift of knowledge
The more we share, the more it grows
The more we hoard it, the more it diminishes