W3C home > Mailing lists > Public > www-patentpolicy-comment@w3.org > January 2002

Berkeley Would Shut Down Internet if Given the Chance

From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Date: Sat, 05 Jan 2002 18:22:06 -0500
Message-ID: <3C378A9E.E3A78F92@RealMeasures.dyndns.org>
To: C-FIT_Community@realmeasures.dyndns.org, C-FIT_Release_Community@realmeasures.dyndns.org, www-patentpolicy-comment@w3.org
CC: adam@consulting.net.nz

-------- Original Message --------
Date: Sat, 5 Jan 2002 17:56:56 -0500
From: Ruben Safir <ruben@mrbrklyn.com>

This is an article with underlines the importance of Fair
Use today and outlines just how aweful are the results when
Universities (ALL of which are funded by  the Government)
use their results and reseach to undermine their mission and
privatize their research.  Berkeley says straight out that
they would close the interent down if given the chance.



Public money, private code

The drive to license academic research for profit is
stifling the spread of software that could be of universal

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

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

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

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

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

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.

Brooklyn Linux Solutions
http://www.mrbrklyn.com - Consulting
http://www.brooklynonline.com - For the love of Brooklyn
http://www.nylxs.com - Leadership Development in Free
http://www.nyfairuse.org - The foundation of Democracy
http://www2.mrbrklyn.com/resources - Unpublished Archive or
stories and articles from around the net
http://www2.mrbrklyn.com/mp3/hooked.mp3 - Spring is
http://www2.mrbrklyn.com/downtown.html - See the New
Downtown Brooklyn....


New Yorker Linux Users Scene
Fair Use -
because it's either fair use or useless....
Received on Saturday, 5 January 2002 18:30:09 UTC

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