David A. Wheeler's Blog

Wed, 06 Apr 2011

Comparing Free/Libre/Open Source Software (FLOSS) with Charles River Bridge vs. Warren Bridge

I’ve been reading over an old court case and thinking about how it relates to the issue of government releasing free / libre / open source software (FLOSS). The case is Charles River Bridge v. Warren Bridge, 36 U.S. 420, including the final U.S. Supreme Court decision (United States Supreme Court reports, Vol. 9 (PDF page 773 on)). This is old; the decision was rendered in 1837. But I think it has interesting ramifications for today.

Any lawyer will correctly tell you that you must not look at one court decision to answer a specific question. And any lawyer will tell you that the details matter; a case with different facts may have a different ruling. Fine. I’m not a lawyer anyway, and I am not trying to create a formal legal opinion (this is a blog, not a legal opinion!). But still, it’s useful to look at these pivotal cases and try to think about their wider implications. I think we should all think about what’s good (or not good) for our communities, and how we should help our governments enable that; that is not a domain exclusive to lawyers.

So, what was this case all about? Wikipedia has a nice summary. Basically, in 1785 the Charles River Bridge Company was granted a charter to construct a bridge over the Charles River between Boston and Charleston. The bridge owners got quite wealthy from the bridge tolls, but the public was not so happy with having to keep paying and paying for such a key service. So Massachusetts allowed another company to build another bridge, the Warren bridge, next to the original Charles River bridge. What’s more, this second agreement stipulated that the Warren bridge would, after a certain time, be turned over to the state and be free for the public to use. The Charles River bridge owners were enraged — they knew that a free-to-use bridge would eliminate their profits. So they sued.

As noted in Wikipedia, the majority decision (read by Taney) was that any charter contract should be interpreted as narrowly as possible. Since the Charles River Bridge contract did not explicitly guarantee exclusive rights, the Supreme Court held that they didn’t get exclusive rights. The Supreme Court also determined that, in general, public grants should be interpreted closely and if there is ever any uncertainty in a contract, the decision made should be one to better the public. Taney said, “While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation.” In his remarks, Taney also explored what the negative effects on the country would be if the Court had sided with the Charles River Bridge Company. He stated that had that been the decision of the Court, transportation would be affected around the whole country. Taney made the point that with the rise of technology, canals and railroads had started to take away business from highways, and if charters granted monopolies to corporations, then these sorts of transportation improvements would not be able to flourish. If this were the case then, Taney said, the country would “be thrown back to the improvements of the last century, and obliged to stand still.”

So how does this relate to FLOSS and government? Well first, let me set the stage, by pulling in a different strand of thought. The U.S. government pays to develop a lot of software. I think that in general, when “we the people” pay for software, then “we the people” should get it. The idea of paying for some software to be developed, and then giving long monopoly rights to a single company, seems to fly in the face of this. It doesn’t make sense from a cost viewpoint; when there’s a single monopoly supplier, the costs go up because there’s no effective competition! Some software shouldn’t be released to the public at all, but that is what classification and export controls are supposed to deal with. I’m sure there are exceptions, but currently we assume that when “we the people” pay to develop software, then “we the people” do not get the software, and that is absurd. If someone wants to have exclusive rights to some software, then he should spend all his time and money to develop it.

A fair retort to my argument is, “But does the government have the right to take an action that might put reduce the profits of a business, or put it out of business?” In particular, if the government paid to develop software, can the government release that software as FLOSS if a private company sells equivalent proprietary software? After all, that private company would suddenly find itself competing with a less-expensive or free product!

Examining all relevant legal cases about this topic (releasing FLOSS when there is an existing proprietary product) would be daunting; I don’t pretend to have done that analysis. (If someone has done it, please tell me!) However, I think Charles River Bridge v. Warren Bridge can at least shed some light and is interesting to think about. After all, this is a major Supreme Court decision, so the ruling should be able to help us think about the issue of the government enabling a free service that competes with an existing business. In this case, the government knowingly created a competing free service, and as a result an existing business would no longer be able to make money from something it did have rights to. There were a lot of people who had bought stock in the first company, for a lot of money, and those stock holders expected to reap massive returns from their monopoly on an important local service. There were also a lot of ordinary citizens who were unhappy about this local monopoly, and wanted to get rid of the monopoly. There is another interesting similarity between the bridge case and the release of FLOSS: the government did not try to take away the existing bridge, instead, they enabled the re-development of a competing bridge. While it’s not the last word, this case about bridges can (I think) help us think about whether governments can release FLOSS if there’s already a proprietary program that does the same thing.

I would certainly agree that governments shouldn’t perform an action with the sole or primary purpose of putting a company out of business. But when governments release FLOSS they usually are not trying to put a proprietary company out of business as their primary purpose. In the case of Charles River Bridge vs. Warren Bridge, the government took action not because it wanted to put a company out of business, but because it wanted to help the public (in this case, by reducing use costs for key infrastructure). At least in this case, the Supreme Court clearly decided that a government can do something even if it hurts the profitability of some business. If they had ruled otherwise, government would be completely hamstrung; almost all government actions help someone and harm someone else. The point should be that the government should be trying to aid the community as a whole.

I think a reasonable take-away message from this case is that government should focus on the rights, happiness, and well-being of the community as a whole, even if some specific group would make less money — and that helping the community may involve making some goods or services (like FLOSS!) available at no cost.

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FLOSS Weekly: FLOSS in the DoD

FLOSS Weekly #160 is out, and it features me! It’s an interview of me by Randal Schwartz and Simon Phipps about free/libre/open source software (FLOSS) and the U.S. Department of Defense (DoD). The DoD uses and releases FLOSS, and it has a recent policy about FLOSS that I think is pretty good. If you’re interested in this topic, take a look!

If you’re interested in this topic, you might also be interested in:

  1. DoD information on open source software. In particular, look at the DoD OSS policy (“Clarifying Guidance Regarding Open Source Software (OSS)”, Memorandum by David M. Wennergren, 16 October 2009), the DoD OSS FAQ, and the paper “Use of Free and Open-Source Software (FOSS) in the U.S. DoD” (MITRE 2003).
  2. DACS Software Tech News issue on “DoD and Open Source Software”. See especially my essay, “Publicly Releasing Open Source Software Developed for the U.S. Government”
  3. David A. Wheeler’s personal website (yes, that’s my website). You might be especially interested in “Why Open Source Software / Free Software (OSS/FS)? Look at the Numbers!” (a huge collection of FLOSS statistics), “FLOSS is commercial software” , “Make Your Open Source Software GPL-Compatible. Or Else” (Why you should pick a GPL-compatible license), “More than a Gigabuck: Estimating GNU/Linux’s size” , “How to Evaluate OSS/FS Programs” , “Secure Programming for Linux and Unix HOWTO” (information on creating secure software), and “Fully Countering Trusting Trust through Diverse Double-Compiling (DDC)” (on countering the “Trusting Trust” attack).

So take a look at FLOSS Weekly #160, and enjoy.

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