[Reader-list] The drive to license academic research for profit is stifling the spread of software that could be of universal benefit.

[Harsh Kapoor]

Salon.com

Public money, private code
The drive to license academic research for profit is stifling the 
spread of software that could be of universal benefit.

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 time.

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 envelope."

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 protocols.

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 obscurity."

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 exception."

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."