Simple Liberty  



Why Free Software is Important

Written by Darrell Anderson.

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After spending the past several years researching and studying human social and legal systems, I am both pessimistic and optimistic about humanity’s future.

Much of the conflict and turmoil witnessed today is a result of superstition and ignorance. I have no idea where humanity will go in the future, but I can envision events such as massive self-destruction or global tyranny because of the flawed manner in which modern social and legal systems are structured. On the other hand, technology is rapidly outdating many unhealthy customs and norms. In the midst of my pessimism there is hope. That ray of sunshine is the philosophy behind the free/libre and open source software (FLOSS) movement.

As a student of human social systems I am interested in the free/libre and open source software more as a social movement than the many benefits the technology offers. I believe there are fundamental flaws in the way human social exchange systems function and those flaws are root causes of much conflict. I believe coercive and politicized monopoly exchange promotes destructive competition rather than cooperative competition, and the current concepts of copyright, patents, and trademarks as practiced must change or they will continue to provide the foundation for much conflict. I believe people within the FLOSS movement could change many of the ways those systems operate and could help create a better world for us all. I am encouraged that those changes are evolving right before my eyes within my lifetime. What remains to be seen is whether the FLOSS movement succeeds.

Some people will notice I have used the words “free” and “open source” within the same context. Those people who have studied the social philosophy behind both the free and open source movements will wonder if I am confusing terms.

According to the people at the Free Software Foundation (FSF), free software is defined by four criteria:[1]

  1. End-users are free to use the software for any purpose.
  2. End-users are free to examine the software source code.
  3. End-users are free to modify the software source code.
  4. End-users are free to distribute the software, modified or unmodified, to other people.

The criteria are philosophical. The word “free” does not refer to exchange price or perceived value, but refers to the liberty one possesses with what can be done with the software code. As the people at the FSF admit, the phrase “free software” creates some interpretation challenges. For example, although the majority of closed source software is exchanged as a commodity, there are some software developers who release such software free of charge despite being closed source. According to the FSF criteria, such software is not free despite being associated with no exchange price. Additionally, some people might interpret the phrase “free software” to mean zero price. Because the English word free is subject to these ambiguous interpretation challenges, many advocates have added the French word libre to encourage a meaning of unfettered.[2]

According to the people at the Open Source Initiative (OSI), “open source” is foremost a development model.[3] Advocates adopted this phrase to avoid the interpretation challenges associated with the phrase “free software.” That is, although software code might be distributed in an open and unrestricted format, the code is not necessarily distributed or exchanged for zero price. Open source advocates require that software must be distributed under a license that guarantees the right to read, redistribute, modify, and use the software freely,[4] but the underlying meaning of the phrase “open source” does not necessarily embrace the full concept of free software.[5] Proponents of free software argue that the phrase “open source” does not eliminate the interpretation challenges of the phrase “free software.”

Proponents of “open source” software prefer to focus on the benefits of the open source development model rather than the philosophical arguments. Theoretically, they are not opposed to people who distribute closed source, proprietary software.[6] Open source advocates promote a development model that does not challenge the existing social exchange model. Conversely, free software advocates intentionally oppose any form of closed source, proprietary, or limited distribution model toward software code. Their philosophy most certainly challenges certain elements of the existing exchange model. Although proponents of the “open source” phrase seem to be advocating only a semantic difference in terminology, this distinction between philosophy and pragmatics is important.

The phrase “open source” appears to convey the idea of embracing free software, but the phrase does not necessarily mean all software code is free. Because “open source” software is viewed primarily as a development model, under that phrase a software developer could release code into the public domain for cooperative development and comment, but also could fully maintain the copyright and could forbid externally published modifications. The open source proponents discourage this approach, but the phrase, by definition, necessarily allows this attitude. The phrase “open source” also allows developers to use free software as a foundation to develop closed source software. Conversely, those people promoting the concept of “free software” oppose any such restrictions.

Many people want to quiet the difference between the two phrases, arguing that the dispute only splinters the long-term goals of both groups. Is the distinction between free and open source software important?


Some people relegate the difference to an issue of moral or philosophical concerns versus economic concerns. Open source advocates promote their terminology because they want to see the development model embraced within the business community. Business people have tended to resist the free software model because they are afraid that by opening their source code they will lose control of their means of supplying their own bread and butter. That is, once software is released under the criteria of the FSF, the originators of such code then must continually compete to maintain customers if somebody should improve upon their code. The closed source model tends to create artificial scarcity, a tenet upon which current business models are heavily dependent.

One of the implied cornerstones of the FSF criteria is that this tenet is a contributing problem to current social struggles. Artificial scarcity is just that — artificial (human made) and not naturally caused. The end result is everybody involved tends to suffer to one degree or another.

Open source advocates argue that the difference between the two phrases is insignificant because the code and development model remain the same. They argue that getting business people to embrace the open source development model from an economic perspective will provide the same end result — free software. Advocates argue that getting the open source development model entrenched into the business model will change the way people think and behave toward software development.

Advocates of free software argue that business people embracing the open source development model only provides the potential for these changes. A key is understanding the nature and social philosophy of the concept of licensing. Although today most software developed using the open source model also is free, the nature of licensing does not prevent people from writing additional software that is not free. That is, through licensing, some software could be developed or distributed freely but other software could be sold or distributed with a different license.

There should be little debate that free software proponents advocate a social philosophy whereas open source advocates purposely try to ignore any underlying philosophical issues. To understand why this distinction is important, we need to take a side journey to understand the words and phrases we use today. By understanding these words, and establishing a general agreement on meanings, we then can understand the social and legal models through which this debate proves meaningful.

My first presumption in this discussion is a belief that all human relationships should be based upon free association and voluntary exchange. There are people who disagree with this presumption, but this is where I will begin my discussion.

Based upon that presumption, if I like you and you like me, we both should be at liberty to pursue developing a relationship. If I like you but you do not like me, then upon what foundation do I proceed to enter into a relationship with you? I suspect most people would agree I possess no foundation unless I choose coercive measures. There might be arguable exceptions to this foundation, but for the moment I am focusing only on the general idea of free association and voluntary exchange. Most people would embrace that this is a good place to start to avoid conflict.

Voluntary exchange is a necessary component of healthy human relationships. The German sociologist Franz Oppenheimer called voluntary exchange the economic means of satisfying needs and wants, and forced exchange as the political means.[7] The former method implies persuasion and cooperation to obtain title to resources, the latter implies force and coercion — and often violence or the threat of violence. The former method implies moral power, the latter political power.[8]

The French Liberals of the early nineteenth century also recognized the distinction between voluntary and involuntary exchange, articulating that difference as a class struggle between warriors (bandits) and the industrious class (producers).[9] This struggle can be expressed in many ways: power vs. liberty, takers vs. producers, administrators vs. producers, force and coercion vs. persuasion and cooperation, idlers vs. laborers, predators vs. creators, moneyed elite vs. workers, exploiters vs. creators, status vs. contract, or rulers vs. the ruled. The political means is merely a way to sustain energy flows with minimal effort — the desire of getting something for nothing.

Once we realize the importance of the phrase free association and voluntary exchange, we can proceed to another element of this discussion, a key element in the entire free and open source software movements. The concept of licensing.

What is a license?

The concept of property is not necessarily possession of an object, but is more a recognition of jurisdiction over an object.[10] These objects are tangible resources and include an individual’s body.

Title to property is the way people define boundaries and mutually recognize jurisdiction over specific resources. Title can be written and witnessed or simply acknowledged. Title can take the form of a deed, a bill of sale, a cash register receipt, usage, or often, mere possession. The concept of property and title is the recognition of the ability to exclude other people from using those resources. The concept of exclusion means other people are not allowed to use a resource without the titleholder’s consent.

A titleholder maintains jurisdiction over resources even when not maintaining physical possession of an object.[11] Allowing another individual to temporarily use a titled resource does not transfer title, but merely provides the user a license to use the property.[12] A license only provides usage rights.

The concept of property implies that an individual can transfer title to another individual. The idea of transferring title implies an ability also to abandon title.[13]

All exchanges of property are exchanges of title. Within the spirit and intent of the desire to prevent trespass, only titles to property recognized by individuals within a society may be exchanged. Despite physical possession, title to property obtained by non-sanctioned methods (trespass) is not a recognized title.

Trespass is any unsolicited human action against another individual that deprives the offended individual of personally interpreted happiness.

Disputes regarding property are disputes about title to property — disputes about jurisdiction and control.

When an individual creates something using the resources to which that individual possesses recognized title, the result of that creation belongs to the creator. Whether that new resource is a shovel, an automobile, a book, or computer software does not change the definition. That new resource belongs to the creator.

What the creator decides to do with that new resource is for the creator to decide. If the phrase free association and voluntary exchange are to maintain meaning, then no force and coercion may be used to transfer title of that new resource. If force and coercion may be used then people are no longer structuring their social and legal systems upon the economic means of satisfying needs and wants but the political means. If a social and legal system is based upon the political means then those who do not control those processes are slaves. That is partially why modern social and legal systems are failing like the proverbial Dutch dike. That is, modern social and legal systems are not based upon the principle of free association and voluntary exchange. They are based significantly upon the political means.

At this stage of the discussion, there is no philosophical difference with either the free or open source terms. Both movements are based upon the concept that humans should base their relationships upon free association and voluntary exchange.

If the phrase free association and voluntary exchange are to maintain meaning then a logical conclusion is if people are at liberty to enter into relationships with one another, then they also must possess the liberty to sever those relationships or never begin them at all. There can be no middle ground. Either people are at liberty to choose their relationships or they are not.

At this point readers should begin to feel uncomfortable with how modern social and legal systems are structured. Much force and coercion is used to sustain modern social and legal systems. If you disagree then see what happens to your title to your home if you fail to pay the property taxes collected on that property. Fail to pay that bribe and you will experience the full blunt force of coerced association and involuntary exchange, not free association and voluntary exchange. However, this discussion is about the free and open source software movements and why those movements could lead to peaceably toppling and restructuring the flawed foundations of modern social and legal systems.

If people are at liberty to associate or not associate, and at liberty to exchange voluntarily or not exchange, then how they choose to transfer title to resources must be based upon that same premise.

One of the most powerful social rights one can possess is the right to waive rights. Such a process necessarily means people sometimes must choose between which rights to exercise. For example, people possess the option to speak or remain silent, but can exercise only one of those options at any one time. When people choose to use the property of other people through licensing, they necessarily restrict their own actions through the concept of contracting. There is no way to avoid or prohibit people from making such choices — that is the power of choice. Yet, a climate of free software encourages people to think more carefully before licensing and restricting their actions.

Suppose I ask you to borrow your lawn mower. If you agree, you do not transfer title to your lawn mower, you only provide me usage rights. You provide me a license to use your lawn mower. However, because you possess title to that resource, and because you are at liberty to associate or not associate with me, you are within bounds to stipulate the conditions upon which you agree to license usage to your lawn mower.

Suppose one condition is I agree to fill the gas tank when I am finished, even if the tank is almost empty. Just as you are at liberty to associate or not associate with me, so too am I at liberty you make the same decision. I want to mow my lawn, but I do not possess the immediate resources to mow my lawn efficiently. You possess those resources. However, my usage of your lawn mower necessarily contributes to wear and tear of your property. The First and Second Laws of Thermodynamics are harsh physical laws and every physical resource is subject to decay. Thus, every time you loan your lawn mower, that resource necessarily experiences additional wear and tear beyond what you would cause by yourself. You would like something in return for this additional loss of your resource. An exchange for a couple of pints of gas probably is a reasonable exchange. As author Robert Heinlein once quipped, “TANSTAAFL — there ain’t no such thing as a free lunch.”[14]

The element of exchange also is necessary because we both realize that reciprocity is a cornerstone for healthy human relationships. If you loan me your lawn mower in exchange for a couple of pints of gasoline, you know that in the future if you ask me to lend one of my tools that I too might seek some nominal compensation for the extra wear and tear you will add to my tools. With this understanding we both can live quiet and peaceable lives while mutually helping each other to live more satisfying lives. More importantly, we both operate by the principle of free association and voluntary exchange.

However, we both have an alternate choice. I can “borrow” your lawn mower using force and coercion and the threat of violence. Yet, once again the principle of reciprocity plays a role. If I decide to use the political means of satisfying my needs and wants, I then possess no standing to argue against you using the same methods to satisfy your needs and wants. This is known as the estoppel principle. The concept of estoppel means an individual is limited in argument based upon one’s own actions. Individuals who knowingly trespass against others have no standing to argue against others trespassing against them. This principle discourages the idea of a first-strike preemptive philosophy. If individuals offer such an argument then they are promoting a theory of self and rights.[15]

If we both choose to exist using the political means of satisfying our needs and wants then we enter into the infamous Hobbesian world of “all against all.” Thus, free association and voluntary exchange are not only solid foundations for mutual existence, but are critical and necessary components of us both living quiet and peaceable lives.

This concept of licensing applies to any resource to which an individual possesses title. That concept includes books and computer software.

If I write a new book or software program I become the title holder of that resource. Thus, I am at liberty to decide the conditions upon which I allow other people to use that resource. In conventional terms, this specific type of title possession is called copyright. Focus only on the concept of copyright. That is, although the concept of copyright today is profoundly clouded by political interference, the concept of copyright is a valid concept within the context of property, titles, resources, and exchange. The base meaning of copyright is merely another way of expressing the concept of licensing.

As title holder I am at liberty to decide how I will allow other people to use my book or software program. I am at liberty to choose to allow nobody to use those resources. After all, I am free not to associate and not to exchange.

Similar to the lawn mower example, I am at liberty to assign conditions or restrictions with how others might use my property. I can release my book or computer program to the public but add restrictions about usage. In other words, I could create a license with how that new resource may be used by others. If free association and voluntary exchange are to remain meaningful, then this license concept must remain valid.

I have several choices with how I might release my book or software program into the public:

  1. I can provide usage rights but disallow any reproductions or modifications to what I created.
  2. I can provide usage rights and allow reproductions or modifications to what I created. The extent of those rights would be defined in the license notice.
  3. I can maintain social and legal title but release the resource into the public domain.
  4. I can abandon title and release the resource into the public domain with no restrictions at all.

Most people will recognize the first option as the model many book authors choose. Although clouded by political interference, notice that within the context of free association and voluntary exchange, the concept of copyright could exist quite easily without the nuisances of politics. All that is necessary is a publicly knowable license. All authors need do is release their work into the public using a license rather than appeal to the political means of satisfying needs and wants.

There is nothing to stop software authors from using the same model if they decide to release software into the public domain for general usage. That is, a software developer could attach a license that allows people to use the software, but forbids modifications. “Look but don’t touch.”

Although impossible to enforce, that license also would include modifications for personal usage that the end-user never revealed to the rest of the world. That is, individuals could take such software, modify the code to their liking, use that modified software only for personal advantage, and simply keep their mouth shut. Such a license would be recognized by most people as unenforceable, which would lead to the next step in the licensing concept.

A software developer could release code to the public, maintain title or copyright to the original code, allow end-users to modify the code but only for personal usage, and restrict people from releasing modified code back into the public domain or selling those modifications. From a social perspective that license theoretically would be enforceable because the two versions of code are easy to compare. Pragmatically, whether such a license is enforceable remains to be tested.

A variation of this license model is that a developer could release code into the public domain, maintain title or copyright, allow modifications to the code but only if those modifications are released back into the public domain. Notice with such a license that nothing stops the second individual from selling the code, unless the original licensee prevented such an exchange in the original license. Yet, even if the original license allowed free modifications but prevented people from selling those modifications, there is no way to stop people from adding valuable services to that modified code — such as compiling the source code so most people can actually use the program.

At this point we have the basic concept of the GNU General Public License. That license allows people to maintain title or copyright (but does not force people to do that — they are free to abandon title if they so choose), allows for people to modify the code, but restricts people from closing the source code and requires people to release modified code back into the public. People remain free to add servicing value to those changes and charge for rendering that service. What remains free in this model is the source code — information and knowledge. That added value people might package with that source code is not necessarily free.

The philosophy behind this license probably is obvious to most people. The philosophy is that everybody in the world benefits by sharing ideas and information. A cursory review of history reveals that humanity benefits when ideas and information are shared openly and freely. That same review reveals that when ideas and information are controlled using the political means versus the economic means of survival, that a few benefit at the expense of the remainder. The GNU General License is based upon the economic means of exchange and not the political means.

There is a caveat to this discussion, a caveat many people already recognize. Unlike the lawn mower example, where the lawn mower is subject to wear and tear and decay, software is not a true scarce resource. That is, the cost of distributing software code is negligible at best. Whereas lawn mowers require numerous physical resources to produce and maintain, software is not subject to those same natural laws of the universe. Generally, many people are not as adverse to sharing software with one another as they might be sharing physical resources. Thus, what is the foundational debate with respect to books, software, copyrights, and licensing?

The fundamental debate is the labor, skills, knowledge, and time initially required to create a book or software. Regardless of production and distribution costs, which today is almost nothing thanks to technology, there remain the elements of labor, skills, knowledge, and most importantly, time. Each tick of the clock devoted to writing software or books means one less tick to devote to some other pursuit. The only knowable fact of life is that everybody dies and every individual’s clock eventually stops ticking. People need to eat, sleep, and provide themselves shelter. That is a fixed element of life. However, humans support themselves today through an exchange economy and therein lies the root problem to the endless debate about licensing and copyrights. That is, somebody who spends weeks or months developing usable software, or perhaps years developing and writing a book, wants some kind of compensation for the personal investment involved. That old adage arises again — TANSTAAFL.

More importantly, because humans participate in an exchange economy based upon using common mediums of exchange, there always will be a natural desire to accumulate significant quantities of currency. The more exchange power one can pile high, the less production one needs to provide in the future. In the never-ending hope of not having to produce further to satisfy needs and wants, one way to create that exchange power is to create artificial scarcity and monopoly. That is, the natural effect of the modern exchange system is that people tend to try hard to create a means of virtual perpetual motion. The natural laws of the universe continually reveal that there is no such thing as a free lunch, but humans generally insist and persist in seeking ways to bypass those laws.

This is the essential argument and debate about copyrights and licensing. Most people prefer to work as little as possible. Therefore, some people attempt to use various political and social mechanisms to create artificial scarcity and monopoly to encourage people to keep exchanging with them. The concepts of licensing and copyright possesses some social merit, but in today’s world those concepts now are mechanisms used to avoid future production and coerce people into exchanges they might not need or want.

Because every human’s peaceable survival is based upon an exchange model, a natural desire will be to accumulate exchange power. Thus, the root cause problem is not the concepts of licensing and copyrights, but the politicization of the exchange model. Politicizing the rules and principles toward one’s favor and one labors less to produce and sustain exchange abilities. Oppenheimer hit the nail squarely on the head. Politicize the concept of exchange to forcibly create virtual perpetual motion and vendor lock-in is the result.

The concepts of free software and open source development are paradigm shifts resisting the current politicized models of licensing and copyright. That is, the free software and open source development movements are social backlashes against the politicization of the concepts of copyright and licensing. Most people do not argue against the concepts of copyrights and licensing, they argue that with today’s technology reducing distribution costs to almost nothing that the essence of quid pro quo no longer exists in the exchange process. People resent paying $18 for a music CD when they know the stamping and distribution costs are only a couple of dollars. People resent paying $450 for office productivity software for the same reasons. Exchange is based upon reciprocity, and people recognize that the modern tit-for-tat process is skewered.

So how does the free software movement differ from the open source movement?

With respect to reviewing, modifying, and distributing source code, they don’t. However, the phrases themselves differ, and therein lies contention.

Because both models are based upon the premise and presumption of free association and voluntary exchange, both models necessarily allow software developers the choice of how they will distribute the code they create. Both movements encourage a philosophy of releasing code that is free to be modified without restriction by end-users, but they cannot stop developers from adding restrictions.

Superficially, the free software movement is “philosophical” whereas the open source movement is “pragmatic.” That is, the former movement embraces source code that is open within a social or ideological context while the latter embraces source code that is open within an efficiency context. People embracing free software believe there are fundamental social issues at stake, whereas people embracing the open source philosophy believe openly reviewable code creates better code and provides an improved development platform. People within the open source movement are not necessarily concerned with social issues.

The primary focus of both movements is to avoid source code that is closed and proprietary, and therefore unimprovable and worse, leading to vendor lock-in. Both groups of people want to see software evolve and improve, and only openly reviewable and openly distributable code allows that possibility. Nonetheless, the phrases “free software” and “open source” do not mean the same thing.[16]

In the modern world, exchange moves along under a process that few people understand. Although there is a solid foundation of voluntarism in most exchanges, most modern businesses today exist as a corporation. A corporation is a legal fiction.

Legal fictions are contrived presumptions in order to operate under the color of law. Acting under the color of law is acting under the pretense that a statute or custom, whether or not necessary, provides justification to bypass, evade, or ignore known or accepted boundaries.

Legal fictions exist for two primary reasons:[17]

  1. To provide an illusion of legal jurisdiction.
  2. To mask the fact that a rule or principle of law has changed.

Although embraced within the jargon of the legal community, the idea of a “legal fiction” is an oxymoron. A fiction is something that does not exist. Something either exists or does not.

Because people must submit an application to bureaucrats to incorporate, they necessarily must embrace the illusion of legal jurisdiction of that politicized process over the corporation they seek to create. That is, a corporation is a “creature of the state.”

One rule or principle of law that has changed through this particular legal fiction is there is no real human who can be sanctioned or complained against in a court of law. Only the artificial entity can be challenged. There can be no doubt that the concept of incorporating primarily serves the unique purpose of providing political protective shields under the color of law. “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”[18] Corporations do not go to jail and are not easily ostracized. These legal fictions only pay fines. To pay those fines, managers and board directors merely raise prices of the products they sell. Thus, one reason why there seldom is justice when a corporation is involved in a legal dispute is there never is any true restitution. The reason is simple: there is no naturally existing person, only an artificial person that exists for the convenience of a politically controlled legal system.

Restitution is an act of restoring what was lost through trespass.

Under the current process of legal fictions, lost is the concept that personal order must be restored as well as societal order. Restitution has two important aspects that promote social order:[19]

  1. Restitution repairs the victim’s damages and reduce the victim’s desire for revenge and retaliation.
  2. The trespasser is restored by being provided a chance to make peace with the victim and community and restore order.

Unlike you or me — bona fide sentient and sapient human beings, a corporation does not exist in the real world of energy and matter. Nobody can smell, see, touch, hear, or taste a corporation. Corporations exist strictly for the purposes of a manipulated legal system. Those people who manipulate the legal system, and embrace numerous legal fictions, are people who, generally, prefer to satisfy their needs and want using the political means, not the economic means. These are people who, generally, prefer to use force and coercion, not free association and voluntary exchange.

Within the context of this legal fiction, a corporation may release software code into the public domain, but also invoke usage restrictions. This is a cornerstone for artificial scarcity and monopoly. Such software might be freely reviewable, but is no longer free. Suppose, for example, you inspect such software and discover that the developers have programmed a “phone home” feature that sends information about your data files. In principle, under the license agreement, you are not allowed to modify the code. If you do not like this section of code, your only choice is to remove the entire software product from your system and not just the abrasive section of code. Don’t expect any rebates, however. After all, the code is open sourced and you had an opportunity to be fully informed.

Initially, this example might seem outlandish to some computer users, except to those people are technically competent to write source code and configure computers. Consider that most computer users are only users and they possess no expertise to modify source code even if they wanted to. How are such typical users to respond to such a discovery about source code if no alternate software solutions exist?

Additionally, the people who operate and manage these corporate legal fictions might release software code in a dual format. That is, they can obtain the benefits of software released under a general usage license — and return that same code into the public with or without modification, but also include closed proprietary code.

Nothing stops such people from rendering their overall packages almost useless. Through such dual packaging they can meet the legal letter of the phrase “open source,” but avoid the underlying intent and spirit by using their proprietary code to cripple the free code. The proprietary code could make use of numerous free software libraries without “legally” violating any open source license. For example, software installers could be proprietary although the remaining underlying code is free. Most people, because they lack the expertise, would be unable to install that free code.

These kinds of people get to keep and eat their cake, as well as the cake created by others. They benefit from the work of others but offer nothing in return. The principle of reciprocity is lost.

Furthermore, because the proprietary sources are closed, there is no way for anybody to inspect that code to see if the terms of a general usage licence have been violated. Quite possibly, creating that code was impossible without the benefits of the packaged open source code.

Consider again the words of the OSI people regarding “open source” software that the “software must be distributed under a license that guarantees the right to read, redistribute, modify, and use the software freely.” Read the words carefully. Remember that people within open source movement focus on using the phrase as a development method, and purposely choose to ignore social issues. Remember too how the concept of licensing and copyrights work. Thus, people could place software into the public domain but maintain strict copyright. They can release proprietary code that does not modify the underlying free code. That is, they maintain title to the software. A title holder possesses standing to change the conditions under which those resources may be used.

The legal system, already manipulated and controlled by people who generally prefer the political means of survival, the same people who embrace the legal fictions of corporations to exist, surely will protect this process. One reason to manipulate the legal system is to maintain artificial scarcity, pseudo-monopolies, and monopolies. This is important reason why “big business” in the early 20th century embraced regulation. Eliminating competition is one way to guarantee profits. Initially “big business” sought to eliminate competition through mergers and trusts. The “invisible hand” of the market resisted such efforts, and the more “big business” tried to monopolize through trusts and mergers, the more profits tended to decrease. People within the market proved defiant, competition increased, and consumers benefited.[20]

Many business owners then realized that political regulation actually would help their cause. Through regulation, politically created artificial scarcity — monopolies or pseudo-monopolies — could be established, thereby eliminating or reducing competition. Legislation could be written to provide unique privileges within the context of the politically controlled legal system. Political regulation typically is cost prohibitive to small and new businesses. Profits would be regulated and somewhat reduced but guaranteed. Business owners would incorporate their businesses, becoming “creatures of the state,” and submitting to regulation — in exchange for almost guaranteed profits. Therefore, in the long run, regulation was embraced, not only by the Progressives, but also by “big business” itself.[21] Big business and the political system became bedfellows, and the slow death of the community merchant and common law began.

Force and coercion, under the color of law, is a staple element of such a social system. There is a solid reason why many people refer to the modern justice system as the “just us” system. A primary purpose of such a system is to sustain needs and wants using the color of law and the political means. Free association and voluntary exchange have nothing to do with this model.

Yet, herein lies a puzzle that cannot be solved except through changing social customs.

If human social and legal systems are to be based upon the premise of free association and voluntary exchange, then nothing can stop people from licensing software in a restrictive manner. Whether the restriction is through proprietary closed source licensing, or released as open source but with restrictions to modifications, the end-result is the same. People will not be free to use the ideas and information contained in software code, nor will they be free to modify code to solve problems. This is the fundamental debate associated with software patents. The concepts of artificial scarcity, monopoly, and political coercion will continue to prevail. Those who are in control maintain control.

Thus, people within the free software movement can work tirelessly to encourage the free exchange of software code, but they are powerless to prevent people from placing modification restrictions on that code. After all, people are free to associate or not associate, free to exchange or not exchange. Therefore, although people within the open source movement promote their idea of open source code as an exercise in pragmatic thinking, there really are social issues at stake. Social issues that people in large corporations and political circles would rather most people not hear and discuss.

This simple observation reveals the philosophical difference between the two phrases “free software” and “open source” software. The former encourages the free and unrestricted exchange of ideas and information, the latter can promote that same philosophy but leaves the door open for the current political and legal shenanigans to continue. The distinction is important.

Only by changing social customs can this process change. Modifying social customs is possible only by modifying the underlying philosophies.

The open source movement was invented for the primary purpose of promoting a philosophy of keeping source code open, to encourage the original model of free software, but promoting terminology that was less likely to alienate business owners.[22] Yet, most of the modern businesses are legal fictions. Corporations are “creatures of the state.” The underlying philosophy of incorporation is reduced legal liability and monetary profit. Exchanging knowledge and ideas is not a primary goal of people who embrace incorporation and politics. Creating artificial scarcity and pseudo-monopoly is a more important goal.

Thus, promoting this non-alienation between the two phrases also contains the potential for throwing more grease unto the fire. I doubt this was the intent of those who formulated the open source movement, but this is a realistic potential result.

Therein lies the puzzle that only social custom can change. People in both movements are helpless to modify the concept of licensing because that concept is based upon the concept of free association and voluntary exchange. People in both movements must allow for developers to choose how they will license their work. The loophole of the “open source” phrase however, allows for the potential for nefarious deeds. Another cursory review of history reveals that there are people who prefer to use the political means of survival rather than the economic means. Today, they control the social and legal systems. They intend to continue that control.

The philosophy behind the “free software” phrase stops that intent cold as long as the concept of licensing is based upon the tenets of free association and voluntary exchange. That is a primary reason why people within large corporations oppose the concept of “free software” but embrace the concept of “open source” software. Embracing “open source” software allows people to use free software to create proprietary products and not necessarily reciprocate anything. Embracing free software necessarily embeds the concept of reciprocating. The licensing model of free software hardly prevents people from making a living, but does discourage artificial scarcity and a monopoly on ideas and information that tend to benefit all of humanity. The “open source” phrase provides the potential for artificial scarcity and monopoly to continue.

The entire FLOSS movement has not yet seen any such nefarious acts by people, but this is only a matter of time. As long as the current models exist that sustain our social and legal systems, legal fictions will remain an important part of maintaining artificial scarcity, monopoly, and the political means of satisfying needs and wants.

Notice that the core problem is not that people can choose to place restrictions on how they distribute software code. Nothing can stop that choice. Solving the problem of controlling and manipulating software market is easy, however.

Proprietary software models are based upon a presumption of free association and voluntary exchange. People therefore possess the choice not to associate and not to exchange. There is a remedy available should people operating under various legal fictions begin to impose socially disruptive restrictions on software code. The same choice that has existed for eons.


Refuse to associate or exchange with those people who impose restrictions on how you can use software.

Such a choice remains faithful to the original free software movement, but also allows room to wriggle for those people who embrace the terminology of “open source” development. As long as people operating under various legal fictions abide by the general philosophy of the free software movement, everybody should feel free to use those software tools. Should that change, people should be encouraged not to patronize such companies. A primary purpose for incorporating is to seek legal protections under the political system through the illusion and color of law. Once established, however, the sole purpose of a corporation is profit. No sales, no profit. No profit, no corporation.

The same approach can be used with naturally existing, real-life individuals too. If the code is not freely distributable and free to be modified, then the software is not free.

Keep in mind that everybody needs to keep food on the table, clothes on their backs, and roofs over their heads. Thus, people who sell software under the philosophy of free software still need to make a living. For free software to remain a viable choice, and for free software to displace the artificial scarcity created through the proprietary software model, there must be a reciprocating relationship between developers, distributors, and end-users. This reciprocating relationship is maintained when end-users recognize that developers and distributors add value to the software that already exists freely when they package free software into usable products. Nothing stops any individual from downloading software code, compiling, and configuring a computer system using that software. Most people do not have the time, skills, or interest to do that, however. They are willing to pay others to assemble a complete working package. Thus, software can remain free, can be developed using the open source model, but end-users must be willing to compensate the people who provide these free tools. This is not an argument for charity, but an argument for reciprocating relationships.

Such is the approach provided by people providing various software distributions. People work hard to create a complete package and they possess standing to ask for something in return. Such is the foundation of free association and voluntary exchange. Of course, they are free to offer the products of their labors for nothing in return. Many software distributors do this now. Yet, as the model grows in popularity and becomes more accepted, expect in the future to see fewer complete packages offered for free. Expect to see most distro vendors offering the products of their labor for a fee. They might still release distros for free, but expect the free releases to lag behind the most current or modern release. Of course, people still will be free to download, compile, and assemble free software to their own personal liking — if they possess the necessary skills.

Some people packaging and distributing free software already use this model. If you do not like this model then learn to download and compile software. Under both the free software and open source software models, source code always will remain open, but the concept of free association and voluntary exchange allows for developers and distro vendors to offer their products only for a price. They are not necessarily selling code, but are selling additional services based upon code that already exists for free exchange. Right now most “open sourced” software is offered for free. That will change. There always will be people who will develop software code and expect no remuneration, but eventually the tide will shift. People have to eat. Under this philosophy the code always will be free to inspect and modify, but eventually people will begin to charge for various additional services rendered. In the future expect to pay more for free software.

Despite the potential loophole of the “open source” phrase, I have no doubt the intent of the people within that movement is much the same as those in the free software movement. Thus, from my perspective all the people involved are on the same side — the free and voluntary sharing of ideas and information. A desire to create a better world for all of us to live. The loophole does exist, but for now is immaterial. I hope the loophole is never exercised.

Nonetheless, I hope this discussion shows that words are important. Free software and open source software are not necessarily the same thing. The former most certainly is a social statement while the latter is fundamentally a development model. When using the phrase “open source” include the words “development model” too. Doing so will help avoid confusion.

More importantly, however, is both movements can work together to create healthier social and economic models than those currently existing.

How can the collective FLOSS movement help create a better world? Why does the FLOSS movement provide me optimism with respect to how our social and legal systems function? How can the FLOSS movement reduce conflict in the world?

The answers should be obvious by now. The FLOSS movement is a philosophy that says “no” to artificial scarcity, “no” to monopoly, “no” to coerced association and involuntary exchange, and “no” to the politically privileged benefiting at the expense of the remainder of humanity. As long as people are free to modify source code, they are free to improve their own interpretation of how that software should benefit their own life.

A more important point is that as long as people are free to associate or not associate, free to exchange or not exchange, we then all live in a world with much less conflict. When the political means of survival are coercively imposed then conflict arises abnormally. The political means of survival is primarily a process of creating artificial scarcity and monopoly. Being free to modify source code necessarily means being free of artificial scarcity and monopoly. Being free means being able to control one’s own destiny.[23]

If successful within the narrow application of software, this philosophy can expand and envelope other social and legal processes. What will serve as critical mass is when a sufficient number of people embrace this philosophy throughout all facets of their life, and not just with software. Conflict will continue to decrease. Social disorder will decrease and social order will increase.

For example, consider books and music. If through the free software model people begin to understand the social and legal processes behind the concept of licensing, those concepts then are easily adapted to books and music. Authors and artists need no longer seek protection and create artificial scarcity by manipulating coercive political processes. More importantly, those political processes then begin to lose substance and meaning. Authors and artists need only distribute their work with an appropriate license attached. The illusionary system protected by the people of the RIAA (Recording Industry Association of America), for example, collapses without violence. Authors and artists merely need learn how to distribute their works without middle people who no longer add value to their products, and also how to negotiate with middle people with respect to maintaining original copyrights. If music artists and book authors controlled their copyrights, rather than relinquish those rights to publishing companies, the entire file sharing debate disappears. All musical artists need do is sell publishing rights in the form of a license, and that license can allow for the free and unimpeded sharing of musical files. Artists would sell more albums this way rather than fewer and would not alienate fans and followers. Everybody benefits — except the people in the middle who have previously depended upon the political means of survival.

A primary challenge confronting the concept of copyrights (and all political monopolies such as patents) is a snowball effect. Ignoring the obvious desire for scholarly recognition, the concept of copyright is based upon a desire to create a profit, which is based upon a flawed concept that currency and wealth are the same. This flawed idea motivates people to move money to make money. The desire for profit is based upon a desire to create virtual perpetual motion, which is based upon a biological urge to survive with as little effort as possible.

A primary conflict today between free and proprietary software is a fundamental question of whether software code should be treated as knowledge, and if so, should access to that knowledge be open to all humans or only to a select privileged few. The current human social exchange model is based upon the latter approach, which leads to numerous accusations of modern feudalism, enslavement, and unnecessary reliance. Conflict is the result.

There should be little debate that humans today, for the first time in their history as a species, now possess the aggregate means and technology to feed, clothe, and shelter every human on the planet. Accomplishing that feat would dramatically reduce human conflict. A heated debate today is how that end result should be accomplished. Sharing software code in a free and open manner would seem to lead to an overall doctrine of sharing all knowledge in a free and open manner. Sharing knowledge in a free and open manner would seem to promote these goals of reducing conflict and improving human existence. The FLOSS movement contains elements that could radically redefine the way in which humans share and exchange with one another, which could lead to dramatic improvements in the way humans survive as a species. At stake is not whether humans should or must exchange with one another, but whether the process of exchange should be the means to an end (mutually peaceful and beneficial survival) or should be the end to a means (profit, profit, profit).

The FLOSS movement is not a savior but merely a potential catalyst. Yet, like any catalyst, once ignited the process begins. If left unimpeded, or at least unimpeded sufficiently that not even the politicians and bureaucrats can stop the process, we all then will find ourselves in a healthier world.

Yet, do not expect those now in control of social and legal systems to surrender quietly. Their livelihood depends upon continuing their survival using the political means rather than the economic means. To end that model means such people must sustain themselves using free association and voluntary exchange, rather than depend upon the illusions of the color of law and legal fictions.

The Gutenberg printing press often is considered the most important invention of humanity and for good reason. That single invention toppled the monopoly of artificial scarcity in ideas and information. Humanity never looked back and the Dark Ages now is only a chapter in history. The concept of free software possesses the potential for a similar paradigm shift in human social and legal systems.

What cannot be ignored by open source advocates is that there are indeed critical social issues providing the foundation for the concept of free software. Learn to distinguish the difference between the philosophy of free software and the development model of open source. The philosophy of free software is the tip of the iceberg. Embrace the philosophy of free software and open the door to wonderful possibilities. Close that door and the nonsense continues.


Please also read FLOSS Will Not Fail — A Rebuttal.

Terms of Use


[1] “The Free Software Definition,”

[2] “Libre software,”

[3] The Open Source Initiative,

[4] The Open Source Definition,

[5] Why “Free Software”’ is better than “Open Source,”

[6] “The Economics of Open-Source Software,”

[7] Oppenheimer, The State, translated by John Gitterman, (1914; reprint, San Francisco: Fox and Wilkes, 1997), Chapter 1, Theories of the State.

[8] Adin Ballou, “The Superiority of Moral Power Over Political Power,” from Dissenting Electorate, pp. 7–10, Watner, Carl and McElroy, Wendy, editors, (Jefferson: McFarland and Company Publishers, 2001) .

[9] Weinburg, “The Social Analysis of Three Early 19th Century French Liberals: Say, Comte, and Dunoyer,” The Journal of Libertarian Studies, Vol. 2 No. 1 (1978), pp. 50–56.

[10] Rand, Capitalism: The Unknown Ideal, (Signet/New American Library, 1967), p. 322.

[11] Kinsella, “A Libertarian Theory of Contract,” The Journal of Libertarian Studies, Vol. 17 No. 2 (2003), p. 12.

[12] Kinsella, “A Libertarian Theory of Contract,” p. 13.

[13] Kinsella, “A Libertarian Theory of Contract,” pp. 12–14.

[14] The acronym usually is attributed to author Robert Heinlein, from his book The Moon is a Harsh Mistress.

[15] This latter concept is further developed by N. Stephan Kinsella, “Punishment and Proportionality: The Estoppel Approach,” The Journal of Libertarian Studies, Vol. 12 No. 1 (1996), p. 51.

[16] Barr, Joe, “Live and Let License,”

[17] Maine, The Ancient Law, (1861; reprint, Washington, D.C.: Beard Books, 2000), pp. 15–16.

[18] Dartmouth College v. Woodward, 17 U.S. 518 (1819) .

[19] Benson, The Enterprise of Law, (San Francisco: Pacific Research Institute for Public Policy, 1990), p. 71, citing Lon L. Fuller, “The Law’s Precarious Hold on Life,” Georgia Law Review 3, (1969), p. 539.

[20] Hoppe, A Theory of Socialism and Capitalism, (1989, 1990; Boston: Kluwer Academic Publishers; reprint, Ludwig von Mises Institute, n.d.), p. 178; and Friedman, The Machinery of Freedom: Guide to a Radical Capitalism, (New Rochelle: Arlington House Publishers, 1973, 1978), pp. 39–40, citing Gabriel Kolko, The Triumph of Conservatism, Chicago, 1967.

[21] Rothbard, “Left and Right: The Prospects for Liberty,” Left and Right, Spring 1965, pp. 13–14, citing Gabriel Kolko, The Triumph of Conservatism, Chicago, 1967.

[22] Engel, Adam, “Free as in Freedom - Part Two: New Linux,”; citing Eric Raymond, in his book “The Cathedral and the Bazaar.”

[23] Engel, “Free as in Freedom - Part Two: New Linux.”