David H. sent me this short and fantastic article from Wired magazine last week.

The article discusses the travails of Mathew Burton, a former analyst and software programmer at the Department of Defense who spent years trying to get the software he wrote into the hands of those who desperately needed it. But alas, no one could figure out the licensing rights for the software it was supposed to work with… so it never went anywhere. Today Mathew has (unsurprisingly) left Defense and has open sourced the code so that anyone can use it. The lesson? The tangled mess of navigating all the license agreements isn’t protecting anyone and certainly not the public. It’s just preventing interesting new and derivative works from being used to render American safer.

In short, the crises here doesn’t have to do with size of government, but in a misplaced desire by many governments to protect “intellectual property.”

Now I understand the need of government to protect physical property. A forest, for example, can only be logged once every few generations, so allocating that resource efficiently matters. But intellectual property? Things like documents, data, and software code? It’s use is not diminished when someone uses it. Indeed, often its value increases when numerous people start to use it.

But rather than give to tax payers the intellectual property their tax dollars already paid for, our governments lock them down. Today, under the false belief that they are protecting themselves and potential revenue streams (that have never materialized) our governments copyright, patent and license all sorts of intellectual property our tax dollars paid for. In short, we treat ideas like we treat forests, something that only a handful of people can use and benefit from.

This has three happy consequences.

First, ideas and innovations are more expensive and spread more slowly. Remember the goal of innovation is not to license technology, its to use technology to enable us to be happier, safer or more productive (or ideally all three!). When our governments license technology that accomplishes one or all of these things they are, in fact, restricting the number of people who can benefit by giving a single actor a monopoly to sell this service (again, one tax payers funded to develop!) to tax payers or (worse) back to the government.

Second, we end up wasting a colossal amount of money on lawyers. With our governments pretending to be a corporation, managing all this intellectual property tax payers funded to develop, we naturally require an army of lawyers to protect and license it!

Finally, many governments are locked out of open source projects and communities. Since, by policy, many governments require that they own any code they, or their contractors develop, they cannot contribute to open source projects (in which the code is by definition, not owned but shared). This means free, scalable and customizable software and products that small companies like Google are forbidden within government. Instead they (and by they, I mean us) have to pay for proprietary solutions.

At some point I’d love to read more about how government got into the intellectual property businesses. I imagine it is a history paved with good intentions. However, the more I reflect on it, the more I wonder why the first order question of “why do governments have intellectual property” never gets asked. The costs are high and the benefits seem quite low. Maybe it’s time we radically rethink this.