EU Open Source Software Legal

EU Open Source Software

Legal Implications for European Union Governments

The Use of Open Source Software in Government and EU Public Service

Current EU Software Policy: Any Directives, Regulations, Whitepapers and Official Documents Detailing the Current Official Position of the European Union on Software.

Free and Open Source Software vs. Proprietary Software

Legal Case Study - Brazil (i.e. what the Brazilians have done and are doing about open source legal issues during and after implementation of software)

How ill E.U. Governments be affected if following the Brazilian example and its effect on E.U. Intellectual property policy?

How will E.U. intellectual property law and new proposed software patent directive affect Open source legality in the EU?

Legal cases that set precedents for intellectual property concern in open source software use (E.g. Sco vs. IBM, and other copyright, licensing and patent court cases)

Conclusion and Summary

Legal Implications for European Union Governments

The Use of Open Source Software in Government and EU Public Service

I. EU Policy: Open Source Software a. Definition of Open Source Software

Originally the Open Source Definition "started life as a policy document of the Debian GNU/Linux Distribution. There are many inclusive licenses in the realm of Open Source Software. All of the licenses that are noted by this work have one feature in common which is "they each disclaim all warranties." (2005) The intention of this disclaimer is the protection of the owner of the software from liability connected to the software program." This is considered to be reasonable in that there is not sufficient revenue from the program for liability insurance and legal fees to be funded. Open source software is defined as software containing no royalty or other fee imposed upon the redistribution of the software; the source code is available; the right to create modifications and derivative works exists; it may require modified versions to be distributed as the original version plus patches, there is no discrimination against persons or groups contained in the software as well as no discrimination against fields of endeavor; all rights granted must flow through to and with redistributed versions; the license applies to the program as a whole and each of its components, and the license must not restrict the other software thus permitting the distribution of open source and closed source software together. Open source software is defined as: any software program that has a source code which is made available for its' use or modification as developers or other users see fit and it is generally developed in the manner of public collaboration and thereby made available freely. Open Source is also a certification mark that is owned by the OSI or Open Source Initiative and it is intended to be share both freely and even as an improved and redistributed version by others who abide by the distribution terms of the Open Source Initiative's Definition. This software is such that may be distributed or redistributed to other parties without any encumbrances of restrictions. Furthermore the source code must be available for the party receiving the software to possess the capability of improvement or modification of the software.

There is a possibility that the license may require that improved or modified versions of the software to carry a different name and possibly may require that it be stated as a different version of the original software. The Free Software Foundation has a very similar concept in the copy left concept. Many of the Unix operating system part were developed through the Free Software Foundation including the present version of Linux. Linux utilizes applications from the GNU project headed by Stallman and the Free Software Foundation. The Open Source Definition headed up by Raymond is focused toward providing a guideline or branded model for distribution of this type of software in terms of distribution and redistribution. According to OSI regulations "the existing software distribution licenses used by GNU, BSD (a widely-distributed version of UNIX), X Window System, and Artistic to be conformant with the Open Source Definition." (http://searchenterpriselinux.techtarget.com/sDefinition/0,sid39gci212709,00.html)

Each of the following are inclusive in the definition of Open Source Software:

Free Redistribution;

Source Code included with program;

Derived works and modifications are allowed;

Integrity of author's code;

No discrimination against person or groups;

No discrimination against fields of endeavor;

Distribution of license;

License must not be specific to product;

License must not restrict other software; and License must be technology - neutral.

b. Free Software Foundation (FSF)

The Free Software Foundation (FSF) was first established in 1985 for the purpose of promotion of computer users' in their "rights to use, study, copy, modify, and redistribute computer programs." (Free Software Foundation online @ (http://www.fsf.org).Further promoted by the FSF are both free software use and development specifically the GNU operating System which is use in the GNU/Linus variation. The FSF further focuses toward the "spread of awareness of the ethical and political issues surrounding freedom in the use of software." Current projects of the Free Software Foundation are as follows:

GNU;

Free Software Licensing and Compliance Lab;

Free Software Directory; and Savannah. (Free Software Foundation Online @ (http://www.fsf.org)

The following chart shows the primary licenses and their specifics of use in relation to open source software.

License Can be mixed

Modification can be reliscensed Contains special

With non-free taken private and by anyone privileges for the Original copyright

Holder over your

Modifications

GPL NO

NO NO

LGPL YES

NO NO

BSD YES

NPL YES

YES NO YES

MPL YES

PUBLIC DOMAIN YES

Chart 1.0 c. Open Source Software and Financial Impacts on European Economy

According to the European Commission report located Online at the Information society Policy Link: "Europe's content sector alone - media, publishing, marketing and advertising - contributes around 5% to Europe's GDP or some $433 billion, putting it ahead of Europe's telecommunications industry which is a $254 billion industry." (Information Society and Media, 2005) (Information Society and Media, 2005) Furthermore the report relates the fact that the sector claims approximately 4 million employees and is expecting strong growth with the progression of the digital age. Many different sectors of society are brought together in the software arena such as freelance artists, writers, and publishers, independent film-makers, distributors and advertising agencies.

d. Media and Audiovisual Policy

Media and audiovisual policy is an area that the EU has been involved in since the early part of the eighties decade. Current policy framework is stated to date "from the 1992 Treaty on European Union.(Information Society and Media, 2005) Further provisions relating to public broadcasting have focused on the areas of:

1) Regulatory framework which results in an single market for broadcasting that is safe for cultural diversity, effective in delivery and also protects minors from viewing harmful content;

2) The European support mechanisms complement and are coordinated with the national systems'; and 3) External measures, most specifically the cultural interests of the Europeans are defended in the WTO arena.

The "Television without Frontiers Directive" focuses on the creation of necessary conditions to allowing television broadcasts free movement all across the EU region. Secondly "Communication" of 2004 clarifies the method by the Directive is applied in relation to the interactive techniques of advertising that are yet new." (Information Society and Media, 2005) Other issues are yet under review and are stated to have the capacity to result in amendments of the TVWF Directive or the new directives proposal by 2005 years end. Other EU policy framework is inclusive of regulations that "promote competition between infrastructure providers and service providers while ensuring access for user of networks and citizen's rights; measures on copyright and digital rights management; access to and use of public information, as specified under the Public Sector Information Directive; and eInclusion, ensuring that all Europeans can access the new generation of digital content and services." (Information Society and Media, 2005)

Media services that are digitized are those content and services which are "Delivered over wide variety of devices, allowing users to access them by the most convenient means. Whether it be PCs, mobile phones, televisions or other devices; Personalized, according to the user's individual situation; land localized, according to the user's physical location - a key value add for content and service delivered over mobile networks" (Information Society and Media, 2005)

An important role is that of mobile internet in the multi-platform approach due to the fact that interactive television has the potential to "provide a ramp for users who are reluctant to embrace other routes to the Information Society." (Information Society and Media, 2005)Consumer benefits are things such as "more channels and higher quality pictures" (Information Society and Media, 2005) e. Fifth Framework Programme, and the IST-FPS Programme

EU-funded research claims the development of the digitized television system, one example being the MPEG2 standard use in DVD as well as many other technologies being used presently. The research activities within the "Fifth Framework Programme" has as its' focus "the much -heralded convergence between the computing telecommunications and media industries." (Information Society and Media, 2005) From enabling technologies to system integration, end-user applications and service deployment examples are found throughout the IST-FPS Programme including "Development of digital television and other AV systems from various aspects, including network infrastructure, the user interface, service provision and content delivery; the shift to all-digital broadcasting, including the introduction of digital techniques in editing and post-production processing; content creation and management, in particular the problems of adapting digital content to different media and technology platforms (known as cross-media publishing; the use of metadata for indexing and searching multimedia digital content; mobile information and entertainment services for a wide range of mobile users, accessible through devices such as PDAs, mobile phones and laptops; promoting the take-up or new technologies within the media industry by connecting creative artists and media industry practitioners with academic and technology partners; and socio-economic potential of the media industries, including impacts on Europe's region." (Information Society and Media, 2005) f. The eContent Programme and the eTen Programme

The 100 million dollar eContent Programme (2001-2005) focuses on encouraging growth and development of tie European digital content industry. This programme funds projects with short time-to-market and as well experiments with new models in business and partnerships through use of technology that is presently available. The programme's stated 'main thrust' is to;

Improve access to an expand the use of public sector information,

Enhance consent production in a multilingual and multicultural environment,

Increase the dynamism of the digital content market by making it easier to access capital and by developing a consistent European approach to digital rights trading." (Information Society and Media, 2005)

The programme will address "organizational barriers and promote take up of leading-edge technical solution to improve accessibility and usability of digital material in a multilingual environment." (Information Society and Media, 2005)Market areas are addressed by the programmes in which there has been especially slow development as to geographical content, educational content, cultural, scientific and scholarly content." (Information Society and Media, 2005) Another programme the 'eTEN Programme' focuses on the "large-scale roll-out of public interest services, primarily in support of the eEurope Action Plan addressing the "employment of digital content as a basis for online public services in areas such as culture, education, tourism, transport, and mobility and eInclusion." (Information Society and Media, 2005) g. The Information Society and the Information Society & Media DG

The start of 2005 witnessed the policy activities of the Commission, particularly those linked to Media in combination with those linked to Information Society. This combination called the new Information Society & Media DG is for the purpose of ensuring that interfaces between these two arenas are strong in convergence context. Researchers and policymakers alike are stated to have ensured that:

Information Society and Media programmes better reflect relevant EU policies;

EU policies better account for Information Society technologies;

ICTs are better applied to meeting Europe's challenges." (Information Society and Media, 2005) h. The Sixth Framework Research Programme

Information Society Technologies (IST)

Quite a bit of the Information Society's actions reflect a great effort on the part of the European Union. The largest "thematic priority in the EU's Fifth (1998-2002) and Sixth (2002-2005) Framework Research Programmes is that of research related to Information Society Technologies (IST)." (Information Society and Media, 2005) i. The Seventh Framework Research Programme & Information

Communication Technologies (ICT)

Information and communication technologies or "ICTs" are vital in the view of the Europeans resulting in great energy being given to Information Society related agenda. Traditional boundaries are crossed by the Information Society therefore the Information Society & Media DG works closing with the other DGs in relation to policy matters. The DG is diligent in maintaining close working relationships with "DG Research on research activities including preparation of the Seventh Framework Programme for Research and Development; implementation of research into nanotechnology and the preparatory action on security research; and DG Competition on implementing the regulatory framework on electronic communications and on competition related aspects of Internet and International regulatory questions (e.g. Internet naming and addressing issues." (Information Society Policy Link, 2005)

The other stated DGs that share "interests and issues" (Information Society Policy Link, 2005) include, however are not limited to:

DG Education and Culture: eLearning and culture related issues, eContent and Safer Internet;

DG Enterprise and Industry: support to sectoral policies, IPR issues, ICT standardization, business dialogue with third countries, eGovernment, ICT skills.

DG Environment: environmental protection, air and noise pollution, water quality, natural resource management and crisis management.

Europe Aid Cooperation Office: International cooperation programmes for ICT, humanitarian demining, cooperation on research infrastructures.

Eurostat: eEurope benchmarking.

DG External Relations: security issues, regulatory dialogue with partner countries, EC participation in international organization.

DG Health and Consumer Protection: distance selling, spam, consumer protection related to electronic communications, eHealth and electromagnetic fields.

DG Employment and Social Affairs: e-skills, socio-economic impact.

DG Internal Market and Services; Intellectual Property Rights, privacy and data protection, eMoney and mobile payments.

DG Justice, Freedom and Security: data retention, ePrivacy directive, cybercrime, biometrics.

DG Regional Policy: use of Structural Funds fro broadband deployment and for building ICT research capacity.

DG Transport and Energy; Intelligent transport systems (ITS) and eSafety, eTen, sustainable development.

j. European Parliament & Legislature

The European Parliament is co-legislator and thereby exerts great influence upon the co-decision processes in relation to the field of Information Society and as well several of the committees of the Parliament are relevant to the IS portfolio. Furthermore the Council is stated to be a "vital institution for the EG's legislative files, in particular those adopted under the co-decision procedure." (Information Society Policy Link, 2005) k. European Economic and Social Committee & Committee of the Regions

The advisory bodies that were established by the Treaties for contributing to the decision-making process of the EU are those of the European Economic and Social Committee (EESC) and the Committee of the Regions (COR).

l. European Policy-Making

Policy is made in the EU both from the bottom-up and from the top-down. The Member States in the Council and the European Parliament set the priorities of the European Commission and the EC in turn devises the regulatory initiatives and action programmes in alignment with the priorities that were set for them. The Information Society programmes funds projects that contribute to development of policy. Stated "key modes of policy contribution" include policy research and analysis, benchmark and indicators, research roadmaps and future needs, policy forums, best practice, standards, and policy implementation.

Over the past twenty years law and policy relating to open source software has seen many changes. In the decades of the fifties and sixties proprietary software was that which consisted of "limited applications that were almost entirely sold bundled with computer hardware. The packaged software was sold until the seventies and then by the middle of the eighties a more formal model for software code sharing came into existence when Stallman developed the GNU General Public License (GPL). The Internet's emergency propelled the momentum of free software.

II. Free and Open Software vs. Proprietary Software

Open source software provides a solution that is cost effective to companies as well as providing a forum for the development of new software ideas before they enter the market. Furthermore quick and innovative solutions for the desktop are another benefit of open source software. However if complications arise or if the software fails to continue its' existence or fails to be upgraded there is a threat to security and functionality of the software. Another point that has been made is that it is clearly understood that any free software upon gaining popularity will eventually cease to be free. Furthermore the combination of free software and commercial software could very well violate the intellectual property rights of a company and furthermore leaves the question open of exactly where liability rests in the event of a malfunction or security violation and this is particularly relevant in the event of third-party involvement

Open Source Software is distributed in an open and free manner which allows developers of software to make modification and improvement on the originally crated product of software. The code's original distributors control its presentation and dissemination through contractual software licensing laws relating to copyright and contract law. The protection of the software code is in the form of a literary text under the laws of copyright. Copyright law only protects the expression of an idea or facts but does not protect the idea or facts themselves. Patent and trademark law both have the capability to bestow legal rights to software as well. Proprietary methodology involves the employing of a team of programmers and binding them with a non-disclosure agreement. Copyright is then claimed over the code which is created under the protection of the non-disclosure agreement. The most popular of the open source license is that of the GNU or General Public License. The GNU License provides the rights to copy and redistribute as long as a copyright notice is included along with disclaimer of warranties. Further charges may be attached for the cost of distribution as well as an offer of warranty protection for a fee. The right exists to make derivative works for personal use and finally the fight to distribute derivative works exists as long a certain criteria and conditions are met.

Conditions that must be met in relation to the final requirement are:

1) Identification of the work being "modified";

2) That the work is licensed under the GPL; and 3) That the license information is provided interactively if the program is one that runs interactively under normal conditions.

The work may be distributed in executable form only if the source code is distributed along with the object code; or the source code is made as an offer through written form valid for at least a 3-year period and the source code is available for no more than the cost of distribution or for redistribution that are non-commercial in the event that the object code was the only code received along with the notice received from the individual who originally distributed the software; and finally there will be no imposition of restrictions on any of these stated rights. Three common examples of these applications of this principle of redistribution are:

1) Users who only use GPL binaries in the same manner as they use any other comparable programs;

2) Users who modify GPL sources for handling issues that are internal; and 3) Users who modify GPL sources and for the purpose of fun or profit redistribute them.

To date there are no existing court cases in the area of GPL licensing except in relation to trademark law. According to Ben Meglen, Free Software Foundation's attorney:

To a large extent it [GPL Licensing] is enforced by mediation."

The interest in open source on the part of the public sector has intensified as the implementation of the software that is freely available increases. It is seen as a type of quick route to the independent technologies of many companies. The factors know to contribute to these beliefs are inclusive of:

1) A reaction to the cost implication of new, fixed-term software license fees introduced by several large commercial software vendors;

2) Significant lobbying activities by commercial vendors that support open -source software as a business strategy;

3) Antitrust cases that have raised the profile of Microsoft as the software Industry's most-dominant vendor;

4) The realization by several governments that technology expenditures have not benefited local players, but rather foreign, mostly U.S. based, vendors;

5) Heavy investments in e-governments have been made without ascertaining their sustainability over time. Many governments are looking at open-source software for the perceived savings and ease associated with its implementation, as well as its flexibility;

6) The widening of choice in "good enough" supported open-source products.

Recent instances of government support for open source are the use of open-source software in public-sector data centers; mandating the use of open source software by government departments; and channeling public funds to large-scale open-source development. Commercial software and open-source software have been both inclusive in the large IT environment for some time and this is true in the public sector as well. A recent survey related to public use of open source software found that 63% of those interviewed stated they use open source software but that the use of it is "typically limited to dedicated Web or file servers." (Drakos et al., 2003) A separate survey has shown that public-sector organizations in the countries of the United Kingdom, Sweden and Germany all have "above-average use and planned use rates compared to other for-profit sectors, or 37% and 31%, respectively."

It must be understood that a software license is not specifically a contract although it may be if meeting some preconditions on both sides. Consideration or quid-pro-quo is wherein each party has given something of value in exchange for that which the other party has provided. However, there is generally nothing given by the individual who uses the software. Although the licensor has given something of value the fact that the user has not done so results in lack of consideration and therefore there is no contract existing between the two parties. Furthermore the precondition of acceptance on the part of the licensee is not manifested in that there is not an adequate opportunity in which to accept of reject the contract terms. There is no evidence that a conscious and visible decision to accept has been made. Furthermore, it is agreed by legal consensus that clicking on an icon that is marked "I agree" can be of a sufficient nature for indication of assent to a contractual agreement which are known as "click-wrap" agreement however this in itself is not considered enough to constitute a contract between the licensor and licensee. (Malcolm, 2005) According to Malcolm (2005) although there may not be evidence present to constitute a contract due to lack of consideration or due to lack of acceptance there is still in existence the legalities in relation to a copyright. Free Software Foundation Attorney Eben Moglen describes the distinction contained in law relating to software licensing as follows:

M]ost proprietary software companies want more power than copyright alone gives them. These companies say their software is "licensed" to consumers, but the license contains obligations that copyright law knows nothing about. Software you're not allowed to understand, for example, often requires you to agree not to decompile it. Copyright law doesn't prohibit decompilation, the prohibition is just a contract term you agree to as a condition of getting the software when you buy the product under shrink wrap in a store, or accept a "clickwrap license" online. Copyright is just leverage for taking even more away from users." (Malcolm, 2005)

That which can be imposed in license conditions in the use of open source software are those which restrict the right in copying the software as well as the restriction of the licensee's ability relating to modification of the software. That which cannot be restricted is their right to run the software. Furthermore it cannot be required that they destroy their copy upon revocation of the license and it cannot be required to allow the licensor into their property or premises for the purpose of performing audit on software.

Proprietary licenses are sold under a Volume License Product Key (VPK) with the liability resting with the consumer for unauthorized uses of the key. The customer can use the product for the authorized number of products and in the capacity of copying, installing using, accessing or displaying the product. The proprietary license does not include "reverse engineering, decompilation, or disassembly of the product" The license is much of the nature of a limited warranty in that the user may not rent, lease, lend of hot products. Free software on the other hand contains four guaranteed freedoms contained in free software which are:

1) Freedom to run the program for any purpose whatsoever;

2) Freedom to study how the program works and then adapt it to particular needs of the user;

3) Freedom to redistribute copies to assist others; and (4) Freedom to make improvement on the program and then to release the improved program to the public for the benefit of the community at large." (Suzoe, et al., 2005)

The most 'free' of open source licenses" (Warrene, 2005) are those called "Academic Licenses." There are no requirements placed on the user by the academic license and the user does not have to share or redistribute modifications of the products. Inclusive are the licenses of BSD, MIT, and Apache. (Warrene, 2005) The design of the academic license is towards the goal of provisioning "absolute freedom'. (Warrene, 2005). The only restriction contained in this license is the prohibition of leveraging of the original licensor's name as an endorsement in efforts of marketing. It is stated by Warrene (2005) in the work entitled "Navigating Open Source Learning" that "these licenses are truly intended for those who seek complete control over the software, its use, modifications, and subsequent re-releases independently or with another software package."

The BSD license is stated to originate from the University of California in the initiative to "grant the free use, modification, and distribution of software built into the institution." (Warrene, 2005) The MIT license is a creation of the Institute of Technology in Massachusetts and is a rewriting of the BSD license. The Apache license is different from both the BSD and MIT in that its requirement that a notice be included in the documentation or in the source code of modified woks for identification purposes contains Apache Software Foundation created software.

Three other types of licenses are the (1) Reciprocal license; (2) the Standards license; and (3) the Content License.

The Reciprocal License grants complete rights for use of the software to both the developer and the end user alike. The only requirement is that any derivatives of software should not be released under the same licensing and the resource code is required to be released. The Standards License is of the nature that "seek[s] to create a base standard of software and documentation." (Warrene, 2005) Finally, the Content License is for coverage of items other than code such as the pursuits of art, copy and audio/video applications. Warrene (2005) states that "One caveat with Creative Commons (CC) licenses is that if a Share-Alike attribute is included in a CC license, it makes the license reciprocal, similar to the GPL." m. Intellectual Property

Concerns in the area of Intellectual Property rights are in understanding the process of licensing and distinguishing between copyright, trademark and patent rights. The IP laws are stated by Warenne (2005) to 'archaic' and makes suggestion that "developers select a license that they can live with in the long-term." n. Government Policy

Patents and copyrights are both used for the purpose of securing the property value of the software companies whose "secrecy" is key in protecting their rights to the source code of a program. Open source software and commercial software coexist well in environments "where flexibility is paramount and communal development works well." (2002) However commercial software dominates very often the market in which "ease of use or customer support and training are more important and financial incentives spur innovation." (Hahn, 2002) Tensions are often the result of both open source and proprietary software being available.

The licensing terms of open source software makes it tenuous for its coexistence with software of the commercial type. European Parliament has called upon nations that are members of the EU in an initiative of promoting the software if practical. Regulations that were in the works in years prior to the present are listed in the chart below.

Existing Government Support of Open Source Software Around the World

Country Proposal Date Adopted

Asia

Singapore Government agency (the EDB) charged with 2001

Planning and executing strategies to boost the Singapore economy offered temporary tax reductions and financial grants to fund

Linux-related projects.

Europe

Germany Compensation legislation requiring that right holders

Jan generally may not waive in advance their rights to adequate compensation for use of their works. An exception inserted at the request of open source lobbyists permits waiver of this right if the right holder grants right to simple use of the work to the general public.

Bundestag mandated a new IT environment: Linux on Servers, Windows on desktops.

Mar

Government - IBM agreement that offers German

Government offices discounts on IBM machines with Preinstalled Linux provided by German Linux distributor

SuSE.

Latin America

Brazil Legislation mandating open source software be given preference in municipal governments of Recife, Campinas,

Solonopole, Amparo, Sao Carlos and Porto Alegre.

Europe

France Parliamentary bill forbidding government related institutions Dec 1999 to use anything but open source software.

Italy Bills mandating an open source software preference in all

Feb/Mar 2002 governmental offices.

Spain Bills requiring regional governments to prefer and promote open source products.

Bill submitted to the Catalan parliament mandating an open source preference in all regional administrative bodies.

Motion by the Izquierda Unida Party urging the Senate to June 2002 ensure that all public administration websites, documents, and software are Linux-compatible.

Latin America

Argentina Bill mandating use of open source software by all provincial

Administrations in the Buenos Aires province.

Bill mandating all governmental sources offices to use "free

Software."

Brazil Legislative proposals mandating preference for open source

September 2000, software in all governmental offices.

Software in all governmental offices.

Peru Legislative proposals mandating preference for open

March, 2002 and Source software in all governmental offices.

o. Various Views of Government Policy

Experts were questioned concerning government policy relating to market economies of open source software. When questioned as to whether or not a significant market failure in the development or production of open source software has been identified, James Bessen, David Evans, and Bradford Smith all state that 'No', there is not a current market failure in software. Evans believes the software industry has performed well in the context of production and innovation without receiving intervention measures on the part of the Government. On the other hand Lawrence Lessig states that "Yes, a significant market failure has been identified in the development and production of open source software but: "open source developers cannot fully capture the failure of their work, but this doe not necessarily destroy the incentive to innovate." (Hahn, 2002)

Of the four individuals questioned (Bessen, Evans, Lessig, and Smith) none argues for direct government subsidies for open source. Bessen states that "where the government has intervened it has created a market failure; Evans states that "the government should not be in the position to pick industry winners; Lessig states that "the government should be neutral but careful to address its own interests; and Smith sates that "only the marketplace can satisfy actual market needs." All four individuals believe that "open source and proprietary software have important roles to play."

IN relation to whether the government should make software procurement based on benefit-cost framework similar to a profit maximizing firm James Bessen argues that products should be considered on their merits in relation to the specific project at hand. The Government, according to David Evans should choose the best products for their internal use. Lawrence Lessig agrees but states that the government has a greater interest in benefits externally such as in an open platform. Bradforth Smith did not address this question. The suggestion that government should provide encouragement to firms for commercialization of research and development through disallowing GPL or "viral" license to be used in government-funded research was affirmed by David Evans who held that ensuring that the outcomes of research that is publicly funded by the government is not research subject to licensing restrictions.

Smith as well held that the government's promotion of innovation through research and development initiatives should serve as a facilitation of commercializing the research which results. Lessig held that it is impossible to assert a 'general' rule because in some instances government support of GPL projects is practical. Bessen did not address this issue. The final question posed to the group of experts was the suggestion that government should make efforts in changing patenting policy so that open course would be allowed to be more competitive. Bessen affirmed that the restoration of 'subject matter and limitations on patents" as well as strict standards on patent quality. Lessig affirmed as well stated that a system with software patents is one that is biased against open source and free software. Evans did not believe that this should be the case but that there might be a better balance found between protection and innovation through tougher patent standards and shorter patent lives. Smith did not address this issue.