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Licensed for Innovation
I’m going to make a point about software licensing and open source by an albeit circuitous path.

One of my peak live music experiences was hearing Etta James in concert at Ironstone Vineyards. While she is more a star of my parents’ generation than mine, Ironstone’s small amphitheater nestled in the Sierra Nevada foothills was a perfect venue for her intimate, soulful sound, and thus an opportunity not to be missed.

My generation knows her voice best through her biggest hit, “At Last”, serving as the soundtrack for a long-running series of Jaguar TV commercials. What I did not know, that she hinted at in the concert, was that she had been involved in a dispute with Chess Records and British Motors over royalties from the use of that song in the commercial. Etta James was signed to her first recording contract as a teenager, and while Chess Records appeared to be no worse than other labels at the time in terms of the contracts it offered young artists, it was probably no better either. It is entirely possible that Etta James’ deal was less than scrupulous (see the book “Spinning Blues Into Gold”, by Nadine Cohodas, if you want more details of that time).

What fascinates me in this kind of rights dispute is that, regardless of the facts – facts that, at this point, probably no one clearly remembers or has well documented – it is human nature to instinctively side with the little guy. We naturally assume that British Motors and/or Chess Records must have somehow taken advantage of the young artist.

Consider, for example, a reversed situation: a young amateur musician performs a remix of a popular 50s car commercial jingle, turning it into a sizzling pop number, and posting it to YouTube where it becomes a hit video. If the car company then sues the young artist for failing to properly license the song, who do our sentiments side with? The musician, of course.

Our human nature to favor the little guy ignores the cognitive dissonance here: if we are right to fret that British Motors may have used a song without proper license, then the consistent point of view is to see that the artist in the second example has also used a song without proper license. We aren’t wired that way, though. Instead we get caught up in trying to figure out who is right and who is wrong.

And that’s the first point I’d like to make: being right often counts for very little in life. In fact, if you set aside questions of right and wrong, you can see that in fact Etta James and British Motors needed each other, and benefited greatly from each other.

On the one hand, British Motors couldn’t pay to have the kind of soundtrack written that “At Last” provided. Etta James created an innovative lifestyle statement for the Jaguar that would not have come about from trying to explicitly write such a piece. On the other hand, British Motors created an enduring audience for Etta James that has enabled her to be recognizable to new generations, and thus to continue to headline well past the time when many of her peers have retired from live performance.

My second, hypothetical example works the same way. The YouTube musician is creating valuable advertising for the car company that they couldn’t pay to create even if they wanted to. The smart company would encourage rather than try to suppress this musician.
Promiscuous use of intellectual property enables innovation to happen that would otherwise not occur, because talented people in one domain can have their work reused creatively in other domains where they don’t have the talent or knowledge to recognize the opportunity to apply their work. Too often we overlook this lesson because we get hung up on the right and wrong of how intellectual property is shared.
What does all of this have to do with software?

First, the distinction I've made here between focusing on "right vs. wrong" on the one hand and focusing on mutual benefit on the other hand actually captures the difference in emphasis between "free software" and "open source" pretty well. Free software is doing the right thing from one interest group's point of view. Open source is about advancing our collective self interest.

More importantly, open source is an innovation driver precisely because it sanctions the promiscuous sharing of intellectual property, and enables people with expertise in a particular domain to have that expertise reused wherever others can find a use for it. We need to remind ourselves of this, and we need to avoid applying “big guy vs. little guy” instincts in every situation.

On that latter point: Microsoft is getting into open source in a bigger way than it ever has before. That’s why it has released code for the Linux kernel, and that’s why it donated money to the launch of the CodePlex Foundation. Anyone who truly believes in the principles of open source has to believe this is a good thing, and indeed should be the inevitable outcome of years of open source success. Why is Microsoft willing to be more promiscuous with its own software intellectual property? It isn’t about doing the right thing. Its about doing the smart thing, and participating more fully in an innovation opportunity that other companies have enjoyed for years.

We’ll get a more innovative Microsoft, and a better open source community, as a result.