The substance of the new draft of GPL3 poses one set of puzzles. The process poses yet another. I note, the software may be free, but the license grows ever more paradoxically elaborate as it simultaneously tries to free and to restrain—or to conform to one idea of “free”—and the process… oh the process…

It is fairly common in discourses of tech policy to advocate that a matter be taken up by regulators or legislators, to make someone or other accountable. That is, one simple idea is that a bare market process is not “accountable” but the political process is. Another simple idea equates the two—the political process is like a market process—in the market you expend dollars, in the political process you expend votes.

The former idea is nonsense. Of course, markets are accountable—strongly so. Businesses must perform for their consumers, or lose money—their own money. For government, there are often no consequences of failure—if they lose money, it is not their own. Legislators can be voted out but only by their own constituents; regulators cannot be voted out at all. As James Buchanan notes, a consumer who fails to find exactly what he is looking for in the market keeps his dollar to spend on his second choice. A voter whose candidate loses also loses his vote, and must accept the choice of other voters.

Another, related set of arguments relates to the theory of the firm. Central planning, market advocates note, does not work. The puzzle, then, is why do corporations work? Corporations have planning—and within a firm, there is no market. One does not need to buy pencils from central supply, they are simply handed out. If corporations work, why can't fascist or socialist economies work well on the same principle? Coase solved the puzzle by noting that unlike a country, the borders of a corporation—size, goals—are established by the market and kept in check by market forces. Corporations that don’t produce results, can and do fail.

Where into this skeletal analytic framework does GPL3 belong? It is not a political process. It cannot be forced upon anyone. In some respects, accountability to "consumers" as such is weak, for open source producers do not necessarily need users’ dollars—and therefore the users cannot withhold them. But the quality of the product is supported by reputational mechanisms—and by competition with other products (open source & proprietary). But this seemingly has not worked within the product to yield a user-friendly license agreement at this stage of the game; by now, many contracts would have evolved towards clarity to solve their basic purpose of enabling parties to avoid or resolve conflicts, GPL3 seems to be going the other way--although the issue of patents downstream has been clarified. But the drafters of GPL3 may have gone too far in showing their willingness to leverage their libraries into retaliation against Novell and Tivo--so that for commercial enterprises, alternatives to the GPL like the BSD will be preferable—and those alternatives or traditional proprietary contracts--will continue to proliferate. A market process that is working, then—working in the sense that failure is possible.

The risk comes from the sense of some policymakers that the enterprise represents a ‘higher ideal’ rather than just another experiment—a “higher ideal” that ought not fail. That ought to be incorporated into antitrust policy or copyright or subsidized. Reputational mechanisms are skewed by ideology. The new draft of the license isn’t a step in the wrong direction—rather, it represents a set of noble goals towards which the rest of the world ought to aspire. Not a pecular idea of ethics take a bit too far, but enlightened. The consciousness that rejects it is a false consciousness. In the context of such a worldview, nothing is learned from failure. In this sense, the process that yielded GPL3 may have more in common with a regulatory process than a market one.

posted by Solveig Singleton @ 4:48 PM | Software

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