One of the first things the Obama Administration is interested in doing is exploring how the United States government can use open source software rather than rely on proprietary software that is viewed as costing to much money. So at a time when corporations are cutting jobs left and right and our economy is in jeopardy, one of the first priorities of President Obama is to determine whether it is feasible to stop relying on proprietary software bought from companies like Microsoft, Oracle and IBM. Much like those who supported Obama only to find out that he would appoint a fiercely pro RIAA attorney to be Deputy Attorney General of the United States, I suspect that there are many in Silicon Valley and beyond who supported President Obama and are now enormously troubled by the fact that his Administration seems ready and willing to proceed with open source, anti-proprietary solutions. This does not bode well for those concerned by what President Obama’s view of proprietary rights will be.

I know that many governments around the world are turning to open source solutions to cut costs, and according to a recent article by the BBC, the global loss due to proprietary software is $1 trillion a year, with the loss to the US being about $400 billion. But what exactly does it mean that proprietary software causes a loss? I guess the thinking is that if you go open source then US companies and governments don’t have to pay $400 billion a year to those companies that develop proprietary solutions. That isn’t exactly a loss though is it? Of course not. If the US were to go open source then take another $400 billion out of the US economy, not a wise thing to do at the moment if you ask me. Although it would sure go a long way to paying for the pork that is going to be in the next stimulus package. Killing US high-tech industry in order to pay for stimulus that will have questionable value doesn’t seem like a good trade-off to me.

Open source advocates are going to love the fact that Obama wants to transition the US government away from proprietary solutions. I don’t have any dislike for open source advocates, and I wish them well. I do have a different view of the economics though, and of the patent system. I hear all the time that software patents prohibit innovation, but then when you talk to those who say they cannot create because of patents it is clear that they don’t understand patent law and are saying that not because it is true, but because that is what they belief. It always comes as a shock to computer programmers when they learn that just because it is in a patent doesn’t mean you can’t take it without infringing. They just don’t fully understand that for their to be infringement each and every element of a patent claim needs to be taken and residing in the allegedly infringing product. If you explain it that way then those who are honest realize that most software patents really prevent very little creativity.

I don’t harbor ill will against those who are anti-software patent, I just wish we could really have an open discussion about the issues with the legal reality mattering. I know there are software patents out there that should never have issued, but when the talk centers on patentable subject matter or myths then I have problems. Software ought to be patentable subject matter, and stuff that is not specific and enabled ought not to be patented. But before public sentiment is turned against software innovations shouldn’t we get the facts about infringement straight and ask what is really best for the economy and to foster innovation?

In any event, the fact that President Obama wants to discuss open source is fine, but it does make me wonder what he thinks about patents. There is just a diametrically opposite view between open source and proprietary innovations, and it is critically important to know whether the man who will appoint the next Director of the USPTO believes in the patent system or believes that patents hurt innovation. There is simply no proof that patents harm innovation, and the tales that patents do harm innovation are based on inaccurate understandings of the law and faulty economic analysis. Since the patent system in the US has been strong we have enjoyed tremendous economic growth. That is not coincidental; it is cause and effect.

President Obama he has turned to Scott McNealy, a co-founder of Sun Microsystems, to lead his open source charge, a fact that is sure to irritate some supporters in Silicon Valley who do not particularly identify with Sun. While you might expect many in the tech community to embrace a movement toward open source, here is what Ars Technica had to say, in part, about Obama’sdecision, particularly the decision to turn to McNealy:

Although Obama’s interest in open source looks like a promising sign that the incoming government is serious about reforming federal IT procurement policies, the decision to call on Sun’s eccentric co-founder is an incomprehensible twist. McNealy’s long history of bizarre and contradictory positions on open source software make him a less than ideal candidate for helping to shape national policy on the subject. Asking Scott McNealy to write a paper about open source software is a bit like asking Dick Cheney to write a paper about government transparency.

And here is what CNET had to say, in part:

While I agree with those benefits [of open source], I’m not a supporter of mandates. I wouldn’t want the government mandating Microsoft software–why would I therefore seek an open-source mandate? Open source has done remarkably well in the U.S. federal government without mandates, and will continue to do so because of the benefits identified by McNealy.

The trouble I have is that once again the US government seems to be interested in picking the winners and losers rather than letting the marketplace do that. As some industries get bailed out and other do not, and as some companies within industries get bailed out and others in the same industry do not, this is just more evidence of the government putting its finger on the scales. It is naive to think that if the federal government goes open source that it will not cause many companies that deal with the federal government to go open source. As the tidal wave continues it will be good for the open source community and service companies, and a whole lot of high paying, high-tech jobs will be lost. That is simply not a good trade, not right now at a time when our economy is so fragile.