Those of us who believe in property rights and markets because they are the most efficient, most transparent, and most moral mechanisms which human societies can use to attain amazing complexities of cooperative behavior are about to get further proof that we are right.

The Free Software Foundation announced that:

The first draft of the revised GNU General Public License will be released during the "First International Conference on GPLv3", at the Massachusetts Institute of Technology (MIT) on January 16 and 17 2006.

This will be the start of a continuing process of uncertain duration that “will bring together thousands of organisations, software developers, and software users from around the globe during 2006” in “one of the largest participatory comments and adoption efforts ever undertaken.”

It is most definitely not a market process, though the enterprise is dependent on property rights because it relies on the right of the creators of code to govern its use. It is property rights as a form of ju-jitsu – they are used to destroy the commercial possibilities with which they are usually associated, and to ensure that markets cannot arise. To a large degree, the FOSS Movement must be viewed in political and religious terms.

Peter Brown, Executive Director of the Free Software Foundation says, "With the release of GPLv3, we aim to increase the international reach of the Free Software movement." To develop this new licence, we will be contacting communities across the globe to ensure their participation in the update of one of the most important social documents of our time."

Many open source licenses are in circulation, but the GPL is special, the keystone of the Free and Open Source Software (FOSS) Movement, because it governs Linux, which is by far the most important of the open source programs.

While there are many possible issues that could be addressed by the proposed revision, two stand out:

1) The GPL is often called “viral,” because any software program that interacts too much with GPL’ed code becomes itself subject to the GPL. (At least, per the license. The issue has never been tested in court, and some experts doubt the enforceability of this provision under conventional doctrines of Fair Use.) The question “how much is too much?” is murky.

2) The GPL requires that anyone who modifies and distributes GPL’ed code must make the modifications publicly available under the terms of the GPL. However, this requirement does not kick in if someone modifies code and then does not distribute it. This creates the possibility that a company can take GPL’ed programs, modify them substantially for private use, and keep the changes secret, giving nothing back to the “community” while getting quite rich. Google comes to mind, which boasts of its reliance on Linux.

This problem will grow even more acute as and if software is delivered as a utility over the Internet. A company could take a GPL’ed spreadsheet program, improve it, and use it as the basis of a business of selling spreadsheet services. This, too, would avoid the obligation to share because the new code would not be distributed.

The views on these issues of the participants in the FOSS Movement are splintered. Richard Stallman, head of the FSF, Messiah-in-Chief (he sometimes dons a white robe when giving a speech), and the one with the final say on the provisions of the GPL, believes that proprietary software is immoral. To him and his followers, allowing code to link or be modified without bringing it under the GPL is heresy.

Another wing of the Movement sees things differently. Its members do indeed have commercial interests, even if they share to some degree the political assumptions of the FSF. To them, the goal is a mix of open source and proprietary software. They want open source platforms, such as the Linux operating system, on which developers and companies can then hang money-making proprietary applications. They want to make money from software, but either they simply prefer Linux as a platform or prefer to avoid paying to use an operating system. In this view, open source is a tool to use against Microsoft’s Windows operating system and against various proprietary versions of Unix, but is not itself a moral imperative.

Part of this second group consists of developers and software companies. IBM in particular, one of the most important players in the FOSS Movement, is hardly philosophically opposed to proprietary software; it is almost as big a software seller as Microsoft. But it has a strong interest in making the operating system into a commodity and charging money for its specialized aps and the services necessary to make everything work together.

Obviously, these interests do not want to make it difficult to link proprietary programs to GPL’ed code, such as Linux.

An important question is what Linus Torvalds thinks. Stallman controls the GPL, but Torvalds controls the Linux kernel, or is at least a prime force – Linux itself has turned into a giant corporate enterprise, and Torvalds is more primus inter pares than monarch. Without Linux, the GPL becomes a backwater, and if the Linuxers don’t like GPLv3, they could abandon it for their own license.

This would be exceedingly messy, since old code would be under a now-defunct version of the GPL, and new code under a different license. In addition, many of the ancillary programs that attach to the kernel to make a complete Linux distribution were developed by the FSF or by other parties, such as Red Hat, and placed under the GPL by them. So for Linux to abandon the GPL would also require writing substitutes for all of these.

However, it could be done. And there is reason to think that Torvalds and the Linux people do not share Stallman’s messianic views of proprietary software. An odd fact is that a special Torvalds-written addendum to the license covering the Linux kernel renders it less viral than other GPL’ed code.

All of this only scratches the surface of the complex interests swirling around this enterprise.

For example, look at the software services issue. How much of IBM’s services business consists of adapting Linux to special circumstances for individual companies, a profit center that could be significantly dented if all such code had to be revealed? Will Google be willing to reveal all the tweaks it has added to Linux, or would this be the equivalent of throwing the corporate crown jewels out the window?

What is Sun doing? By making Solaris into an open source program, Sun has put itself in a good position to inherit operating system primacy if new provisions of the GPL make Linux unpalatable to large segments of the corporate community. So, if I worked for Jonathan Schwartz, I would bend every sinew to make GPLv3 as comprehensive as possible.

What do the Europeans really think? Do they actually understand any of the crass forces at work, or are they living in an abstract world of philosophes?

All in all, it should be a good year for those of us who enjoy watching close quarter combat. Part of the fun will be that all discussion of crass commercial advantage will be forbidden, of course. The issues will be obscured by the need to talk solely in elevated terms of competitive moral purity – who is more dedicated to openness than whom?

So, to repeat, the whole enterprise will provide further proof of a basic argument in favor of both property rights and markets: that they are the most efficient, most transparent, and most moral mechanisms which human societies can use to achieve miracles of cooperation. It is no accident that the West grew rich only after markets assumed importance. If you don’t believe it yet, I’ll get back to you in about a year.