John Mark's article about "Why Open Source Failed" is so extremely misguided. It lambastes the open source community for driving inequality in the world by making their work freely available. He doesn't entirely let the "Big 4" technology corporations off the hook for being evil, but, because of that conspicuous difference between open source and corporate development, he certainly blames open source for helping them get where they are today. To conceive this canard, you have to be willing to take on board some pretty big assumptions about the power dynamics between technology corporations and open source. I am not, primarily because bending over backwards to conclude that sharing non-rival resources leads to inequality is a distraction from very real drivers of inequality originating from corporations. It is not the fault of the open source experiments that those corporations have been spinning out of control for decades. The corporations' leaders chose that path for themselves. The engine of inequality Mark is trying and failing to address is corporate abuse of open source, and corporate abandonment of good business sense in pursuit of pure profit without consideration for the larger tech ecosystem of which they and open source project are parts.

Copyright and open source

The first thing we need to realize is that offering free alternatives is not new. It has been a thing for far longer than the open source's two decade vogue—consider the public domain, works not covered or no longer restricted by the copyright system. It is the destiny of all copyrightable works to enter the public domain, even if that inevitability seems imperceptibly distant today. After that, they are free as the air to be used by anybody, and software (for better and worse) is copyrightable, so it shares that destiny. Maybe the software will be outdated in 95+ years, when copyright may expire today, but that is an immaterial accident caused by grafting the strictest version of our literary system onto bits. One could easily imagine creating a different species of copyright for software, as the (poorly named) design patent serves the fashion industry. The main innovation of open source within this system is the abdication of copyright restriction and allowing that destiny to come early, within the lifetime of its original creator. (Which, really, was not much of an innovation because most things were never copyrighted before formalities were abolished. "I would like to continue the status quo after you've changed the rules, please.")

When talking about copyright policy, we too often neglect tech's role in delivering this sorry state of affairs, but it is illustrative to take a look at the most common copyright trolling boogeyman: Disney. A famous user of free works like Beauty and the Beast or Hunchback of Notre Dame, does Disney's use of public domain literary works drive inequality in film? No. Hard no. Those works are free, and Disney made use of them to make projects that people have enjoyed and the use of those free works has spurred much economic prosperity within and without the mouse company precisely because they are available to all of us. Open source software voluntarily places itself at this important crux to our system of economic development and, again, because software is copyrighted, public domain non-licensing is the fate of every shred of it anyway, however far off that day may seem.

In short, we don't and should not shame Disney for using the public domain. We shame Disney for denying the public domain to everyone else in their attempt to keep their work out of the public's hands, which is a much stronger driver of inequality than releasing some work and not charging rent. The analogy to software companies is direct: don't shame them for using open source. Shame them for attacking the copyright system and lobbying to restrict our rightful access to works held within that system. The corporations made the establishment of open source as a counterculture a necessity in the first place. Don't turn around and shake your ignorant finger at open source after that, with the obvious villain at your back.

Regardless, lobbying for worse copyright laws and spawning our free-culture alone was not necessarily bad business. Some people legitimately think that longer copyright terms are beneficial to society, although I do not. Straight-up bad business sense enters the picture when you start thinking about the second order effects of open source development and corporations' active decisions to poison their relationship with it. This is detrimental to everyone, including themselves. I'll start with funding, since it is the most obvious way that corporations have abandoned their community responsibilities.

Failure to fund open source infrastructure

One of the ways that the analogy between public domain literature works and open source software breaks down is when you consider the fact that old literature is just as useful as it ever was. Old software is almost immediately outdated upon release. To continue working, most software needs to be updated, and so it needs maintainers. This is not too concerning with small projects, but large projects like Python are full-time operations backed by foundations. You don't have to look too hard to find such large projects, critical to the infrastructure of our entire world, are strapped for funding or only have a handful of maintainers who often work on the project in addition to whatever corporate job they have.

I hear you asking "Well, if the arrangement is voluntary, can't the maintainers just walk away if they don't like that?" Then the project dies. Then the projects that run on it die. Then the corporations that make the projects that run on it lose key infrastructure. If such a thing happened under a corporation's own umbrella, it would excoriate management for such bad business practice. It is still bad business when dealing with an open source party. The fact that these people are releasing their contributions for free use is not the driver of inequality, because their contributions are deserving and, in fact, demand support from users as part of the transaction. Corporations refusing to assist the groups on whose labors they build drives inequality—tithing some funds is but the most trivial of ways to rectify that situation. Additionally, calling for corporations to support open source with tithes or even paid worker labor is not a plea for altruism or trickle down economics. It is merely stating plainly what open source's place in the ecosystem actually is. We must address that real, critical role directly because corporations often ignore it, to their own detriment, while causing a lot of inequitable division of labor and wealth. And who do we blame for this? Seemingly never the corporation literally acting against its own best interests.

And as for Mark's idea that individual developers holding software patents and restricting the tools' use would address inequality, who willingly uses S-PLUS over R? MATLAB over GNU Octave? Don't deny the reality that free, generally available tools provided by open source communities are powering modern software development. Question whether or not we are properly adapting to that reality.

Outsourced training and discrimination

Nonetheless, the other side of that is open source projects voluntarily submitting to free riding. It's true that they do so, it is their right, and it is not necessarily insidious for a small company to use Python and to not tithe to it even if they have the resources. Failing to support their open source dependencies is not the only way corporations are abusing the open source paradigm, though. Tell me, how long ago did you last hear someone spread the advice that a new developer should work on open source to prove to businesses that they are capable of doing their job? Trick question: it's every damn day, including this one. Much like allowing defendants to testify at their own trials destroyed the presumption of innocence in our criminal courts, employers taking open source contributions into account has destroyed the presumption of competence and the pathway into this industry. People who would not get out of bed to work for less than $100,000 are demanding that people prove themselves "productive" and "passionate" by working for free outside (thus, in addition to) a 9-to-5, which is a betrayal of the industry in three key ways.

Firstly, this is inherently discriminatory against those of us who don't find satisfaction in open source programming on our own time: I am not less "passionate" or, more principally, a less skilled developer simply because I don't like to do it at home. Secondly, corporations have no right to devalue junior developers by not hiring them and outsourcing their training to open source maintainers without compensation. This prevents people from entering the industry even if they choose to go the traditional university route and get a degree. It, in turn, prevents people from gaining industry credentials, which prevents people from being able to satisfy demand for experienced programmers driving the vacuous perception that there is a shortage of software "talent" out there. Finally, it's also barely-veiled as discriminatory in favor of software development's white male majority because open source is even more white and male than the general software developer workforce. You can talk about the whys of that and how to fix that until you are blue in the face, but the bare bones reality is that if your hiring practice is to filter for open source contributors today, you are filtering out women and people of color and share some direct responsibility for their underrepresentation in the field.

None of this means open source is bad, or is even a reflection upon open source. Contrary to Mark's article, sharing free software is a public good. Corporations systemically requiring people to contribute to open source without adequately supporting that part of the ecosystem with funds, manpower, or a managed understanding of what its dependence on open source means for the industry at large is sickening. Corporate abuse of the open source paradigm is one among so many other ways that corporations are engines of inequality in the world. We should condemn that abuse and seek accountability and reform. Blaming the exploited in this part of the scenario—the open source maintainers and contributors, and even non-contributors via discrimination—and declaring that they have "failed" when they have so clearly succeeded will not get us anywhere in the pursuit of a more equitable world.