[iwar] [fc:Public.money,.private.code]

From: Fred Cohen (fc@all.net)
Date: 2002-01-04 18:58:12
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Date: Fri, 4 Jan 2002 18:58:12 -0800 (PST)
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Public money, private code
The drive to license academic research for profit is stifling the spread of
software that could be of universal benefit.

- - - - - - - - - - - -
By Jeffrey Benner

Jan. 4, 2002 | Would the creation of the Internet be allowed to happen
today? 

The networked society we live in is in large part a gift from the University
of California to the world. In the 1980s, computer scientists at Berkeley
working under contract for the Defense Department created an improved
version of the Unix operating system, complete with a networking protocol
called the TCP/IP stack. Available for a nominal fee, the operating system
and network protocol grew popular with universities and became the standard
for the military's Arpanet computer network. In 1992, Berkeley released its
version of Unix and TCP/IP to the public as open-source code, and the
combination quickly became the backbone of a network so vast that people
started to call it, simply, "the Internet."

Many would regard giving the Internet to the world as a benevolent act
fitting for one of the world's great public universities. But Bill Hoskins,
who is currently in charge of protecting the intellectual property produced
at U.C. Berkeley, thinks it must have been a mistake. "Whoever released the
code for the Internet probably didn't understand what they were doing," he
says. 

Had his predecessors understood how huge the Internet would turn out to be,
Hoskins figures, they would surely have licensed the protocols, sold the
rights to a corporation and collected a royalty for the U.C. Regents on
Internet usage years into the future. It is the kind of deal his department,
the Office of Technology Licensing, cuts all the time.

Hoskins' "privatize it" attitude has become the norm among administrators at
many universities and federal labs across the country. As a result,
computer-science professors and researchers who want to release their work
to the public as open-source software often face an uphill battle.

Some familiar with the situation say the problem is that universities and
federal research labs have become more interested in making money than
serving the public interest.

Larry Smarr, a professor of computer science at U.C. San Diego and one of
the country's top experts on supercomputing, is one of them. As former
director of the National Center for Supercomputing Applications at the
University of Illinois, where the original Mosaic Web browser was created,
he's quite familiar with both sides of the debate.

"Some universities are dead set against giving [software code] away," says
Smarr. "But I don't think universities should be in the moneymaking
business. They ought to be in the changing-the-world business, and open
source is a great vehicle for changing the world."

Open-source software describes program code that is made publicly available
for anyone to copy, change or even sell. The best-known open-source
programs, such as Linux and Apache, are the product of a collaborative
process of software development that takes advantage of the contributions of
thousands of programmers all over the world. It's not only a cheap way to
produce software; with so many eyes looking at the code, the theory is, bugs
are found and fixed more quickly than with proprietary software.

Over the past several years, open-source software development has won
high-profile adherents in the business world -- including the likes of IBM
and Sun Microsystems. But it has always had its strongest fans in the
academic world, where open-source software is seen as a natural extension of
the idea that the fruits of academic research should be shared with
everyone. 

But now some academic programmers on the cutting edge have found that the
licensing office is proving a more formidable obstacle to progress than the
limits of their imagination and skill.

Pete Beckman, formerly a senior computer scientist at the federal laboratory
in Los Alamos, N.M., is a pioneer in creating clusters of servers that rival
the power of mainframe supercomputers. He had to fight with lab lawyers for
months before receiving permission to open-source his department's work on
the clusters. 

Part of the lab's reticence was concern about letting computer technology
fall into the hands of America's enemies, according to Beckman. "But the
lab's other motive for keeping technology private is the misguided belief
they can license it and make money on the lab system," he says. "They have
whole departments dedicated to extracting intellectual property from the
labbies." 

Before Beckman led the fight at Los Alamos to establish a protocol for
making lab software public, "the only way to get your code released [open
source] was to declare it worthless," he says. Beckman won his fight back in
1999, but the old standard still applies at other federal labs.

"Some federal labs can release code, others can't," Beckman says. "There are
whole departments that create valuable new technology, and they can't get it
out to the world because [the lab] is trying to make money off it." Software
for modeling global climate change, the behavior of viral epidemics and
traffic patterns are among the programs researchers can't get released, he
says. 

In a white paper Beckman authored on the problem, he wrote, "Seeking to
control computer-science research by putting intellectual property concerns
before the goal of good science has destroyed countless projects."

Just how many is hard to say. Most researchers are reluctant to criticize
their administrators. It is rare that universities flat out refuse a request
to release software, but the hassle of getting permission can discourage
those who might otherwise release their work. "It's tricky to find
examples," says Rebecca Eisenberg, a law professor at the University of
Michigan who specializes in intellectual property policy. "Because most
technology fails, it's hard to say something would have succeeded" if only
it had been put in the public domain.

Nevertheless, Eisenberg is convinced that university interest in licensing
intellectual property for profit is often at odds with the advancement of
science. "You can make a clear case that research is being slowed by
intellectual property claims," she says.

"Universities aren't distinguishing between times when it's important to
have a patent in place to get something disseminated and times when it's
not," Eisenberg says. "They're just looking to see if they can make money.
It retards innovation and taxes development."

It took Chris Johnson, a computer-science professor at the University of
Utah, several years of negotiation with his technology transfer office to
get permission to make public a program his team had worked on for years.

Called SCIRun (pronounced "ski run"), the program is a software platform for
modeling and solving all sorts of complicated scientific problems. One of
its most promising applications is as a tool for designing new medical
devices. Because it is a foundation upon which other programs can be built,
Johnson felt that making it an open-source-code project was fundamental to
its value. 

"The hope is people will take this and put in their own applications and
share those back with the community," Johnson says. But to do that, they
have to be able to see and use the code without having to pay for it or get
permission. "A lot of smart people out there can show you new and better
ways for you, if they can see under the hood," Johnson says.

But when he tried to explain to the university administration that the best
way to maximize the value of SCIRun was to give it away, he ran into a
roadblock. "We wanted to open-source it," Johnson says. "But they said that
would undermine its commercial value."

The negotiations began, a clash of differing cultures and interests. "No one
really knew what we were doing at the beginning," Johnson says. "We didn't
really understand intellectual property law, and they didn't really
understand open source. The university just didn't want to let commercial
value go. We're academics who wanted to push the envelope."

After two years of haggling, they reached a compromise. In March, the
software was released under a license that allows academics free access to
the code but reserves the right to royalties if the code makes its way into
a commercial software product.

It hasn't always been this way. In the eighties, UC Berkeley was a pioneer
in giving away software for the betterment of society. The rapid
dissemination of "BSD Unix" allowed Internet-connected computers to speak
the same language, helping to make our networked world possible.

But now the University of California is often mentioned as one of the
institutions that have taken the craze for exclusive patents and licenses
too far. "It changed in the late eighties and early nineties," says Susan
Graham, a professor of computer science at Berkeley. She didn't remember
there even being an Office of Technology Licensing back when the department
gave away Unix and the Internet protocols.

If those innovations were discovered today, Graham worries they would end up
in corporate hands. "I don't know whether they would let us release software
like TCP/IP today," she says. "If they thought it had monetary value, they
would want a revenue stream. There would be companies who could pay for it.
I'm not sure we would have the same outcome [as in the past], and that's
what concerns me." 

The trend at universities toward trying to profit from intellectual property
began with the passage of the Bayh-Dole Act in 1980. Bayh-Dole allows
institutions doing research for the federal government -- mostly
universities -- to own the intellectual property they produce, and sell the
rights to private companies. Because most cutting-edge research at both
public and private universities involves some federal funding, Bayh-Dole
allows universities to lay claim to many of their faculty's inventions. The
same rights were later extended to the federal research labs.

The philosophy behind Bayh-Dole is economic stimulation through
privatization. When the law passed, the federal government held roughly
28,000 patents, but fewer than 5 percent of these were licensed to industry
for development of commercial products, according to the Council on
Government Relations, a lobbying group for research universities. By giving
contractors a chance to sell the rights to technology developed in the
course of publicly funded research, Congress hoped to spark an economic boom
with taxpayer-funded technology.

Overall, the model has been a dramatic success. The transfer of technology
from university labs into offices, factories and stores was fundamental to
the growth of Silicon Valley and the success of the new economy. Since 1980,
university inventions licensed to the private sector under Bayh-Dole have
spawned over 2,200 new companies that generate about $30 billion in economic
activity every year, according to the Association of University Technology
Managers. 

Statistics like these explain the enduring enthusiasm among most policy
experts for privatizing the public's intellectual property. But a few
eloquent dissenters have begun to argue that taking privatization of the
nation's intellectual property too far could stifle innovation and suffocate
economic growth. 

The champion of this broad thesis is Stanford law professor Larry Lessig,
who has just outlined this argument in a new book, "The Future of Ideas."
Lessig worries that the proper balance between private intellectual property
(Microsoft) and the public good (the Internet) has been lost, and our
society is blindly moving toward too much private control over intellectual
property. "The shift is not occurring with the idea of balance in mind," he
wrote; "instead, the shift proceeds as if control were the only value."

The most powerful examples that privatizing technology does not always equal
progress are public code like the Internet's and open-source software. They
are cases of technology that derive their value from being public and free;
fences kill them. "The open-source movement is an endorsement of the value
of the public domain," Eisenberg says. "It's a striking counter-example to
the bias of public policy: that the public domain dooms technology to
obscurity." 

The systemic bias toward privatization, which Bayh-Dole codified into law,
has the scientists working on improved versions of the Internet worried.

"For the last 20 years, public money has backed proprietary systems
software," says Rick Stevens, who is working on "grid computing" software at
Argonne National Lab. "We're saying, stop putting public money there."

Ian Foster, another computer scientist working at Argonne, agrees. "I
believe that in almost all cases, the interests of science and society alike
are best served by free distribution of software produced in research labs
and universities. Unfortunately, there are still institutions that place
significant obstacles in the way of researchers who wish to follow this
path. Agencies funding research could help things by making strong
statements in favor of open source, so that this is the norm rather than the
exception." 

Some government agencies are starting to get the message. Open-source
development for grid software and other supercomputing applications is
getting some government funding. The Department of Energy, which runs
Argonne, has been supporting open-source projects for years. In April, the
National Security Agency announced it would help to make a version of the
Linux-based operating system secure enough for the Defense Department to
use. 

Universities are starting to rediscover the value of open-sourcing software,
too. Stanford, the institution at the hub of Silicon Valley, lets its
faculty release software under a public license. "We pretty much go with
what our faculty members want to do," says Kathy Ku, who heads the licensing
office there. "We care about the academic mission more that the money."

Elsewhere, the struggle goes on. "It's trying to find a balance between the
academic mission and commercialization," Johnson, the Utah professor, says.
"This is a hot topic in universities right now, and everyone is really
struggling with it. Some universities have really gone overboard. It's not
going to be an easy thing to resolve."

- - - - - - - - - - - -

About the writer
Jeffrey Benner is a contributing writer at Wired News. 

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