Epstein on Open Source

Richard Epstein has a new essay out on open source software, which is justly and richly criticized at Larry Lessig’s blog.

Not all of the comments are clearer in defending free software than Epstein is in attacking it. What Epstein doesn’t do, and what both lawyers and non-lawyers often fail to do, is this: He doesn’t separate out the legal dimensions of the GPL and similar licenses (Are they really enforceable? As contracts? As “licenses”? We still really don’t know.), from the institutional (or governance) characteristics of free and open source projects, from the economics of enterprises that distribute free and open source products.

It seems clear that as businesses and as institutions, free and open source projects can succeed at both large and small scales. On those points, Epstein is clearly wrong. Ask a practicing lawyer who does any reasonable amount of licensing business: free software is here to stay. The legal community is looking for young lawyers who understand the GPL. But Epstein is right, I think, to point to the questionable legal basis for what’s going on — even if his analysis of the details of the GPL is way off. The jury is still out, so to speak, on the legal enforceability of the licenses.