Is free software private property?
In a 2003 essay, BENJAMIN HAK-FUNG CHIAO makes the startling claim that FOSS is actually Private Property, not in the legal sense, which creates a fictional Common Property, but in a economic sense, as individuals and companies can effectively exclude others from using it, thereby achieving one of the key characteristics of private property.
See: http://opensource.mit.edu/papers/chiao.pdf
Here’s the key argument:
“The GPL originated at the time when the mode of software distribution was through magnetic tapes because network transfers were not feasible. Though the advent of the Internet allows for these transfers, distributors are also equipped with the ability to adjust the excludability of a network. Hence, FOSS is not necessarily a public good.”
Benjamin Chiao gives an example to show how open source companies can exclude people from using free software, thereby effectively privatising it:
“Over the last four years, the author measured the time needed to download various versions of Red Hat Linux, from 5.2 to 8.0. On average, it took more than 5 hours. In September 2002, the author spent about 10 hours to download this software through the Internet. This finding can be easily verified by anyone who has access to the Internet.
There are ways in which Red Hat can increase the inconvenience of the free download:
(i) it can easily limit the speed of download, for example, by setting the number of connections allowed on an Apache web server or ftp server, or limiting the bandwidth;
(ii) it can lengthen the time needed to publish links of organizations volunteering to store Red Hat Linux for downloading;
(iii) it can increase the uncertainty over the time needed for downloading and the quality of the downloaded files.
Unlike Cnet.com, which links to download sites for other software, Red Hat does not rate the connection reliability of published links. Unpublished sites face significant difficulties and incur considerable costs to claim to hold an original, virus- free version of Red Hat Linux.
Are these measures effe ctive? One might argue that with the increase in bandwidth, the download time constraint may not be binding. However, the size of the software also increases over time. Or at least, Red Hat has an incentive to increase the size of the software. In fact, Wheeler finds that, “Red Hat Linux 7.1 represents over a 60% increase in size…over Red Hat Linux 6.2 (which was released about one year earlier)”40. The proprietary Microsoft Windows 2000 Professional comes with one CD but the comparable Red Hat Linux 8.0 Professional Edition comes with five.
There are many other ways in which one can exclude easy access to the code, which will not be listed here.”
Therefore:
“One might argue that one buys the package not because of the time earned but due to value-added services such as documentation and support. However, documentation from famous publishers like O’Reilly is easily available and cheap. This strongly suggests that users buy the CD to get rid of the burden of the download process.”