FREE BEER

When the name of your product is Free Beer, the jokes are inevitable. And for the group of Danish students and artists who came up with Free Beer, that's part of the point, but only part. Because while the name of their beer is meant to be playful, the point they are trying to make with it is a rather sophisticated one.

Free Beer is an honest-to-god beer, but one based on a concept that has its roots in the free software movement. "Free software" began in the early 1980s when software developers first started asserting intellectual property rights over their works. The problem wasn't so much that developers were making money off software, but rather that, by asserting these rights, they were no longer allowing the free and informal sharing of code. The free software movement's objection, which was largely cast in moral terms, was essentially that while charging money for software was fine -- everyone has to eat -- it is not right to prevent others from using, studying, distributing, or improving on it.

Perhaps unsurprisingly given its doctrinaire nature, the free software movement eventually schismed. In the late '90s, the "open source" movement broke off and took a less adversarial approach toward proprietary software. Open source doesn't view proprietary software as the "enemy," as free software does, but takes the more pragmatic view that an open source approach often just results in better programs. By effectively employing a community of programmers, the thinking goes, the software it produces tends to have fewer bugs and more features and tends to evolve more quickly. See the success of the Linux operating system and the Firefox browser, to name two examples.

What does this all have to do with Free Beer? Well, the founder of the free software movement is a man named Richard Stallman, and he's still very much a presence. Stallman directs the Free Software Foundation, which, through its GNU Project (www.gnu.org), administers the licenses that make Linux and other free software available. Faced with frequent puzzlement over how "free software" could be free if it cost money (and is able to support billion-dollar investments from the likes of IBM, in the case of Linux), Stallman came up with a simple explanation: "think of 'free' as in 'free speech,' not 'free beer.'"

While the line was perhaps odd coming from someone like Stallman (who apparently doesn't like beer), it nicely captured the point that while the product itself cost money, the underlying know-how was free to be shared. The line became legendary among free software and open source advocates and others who thought critically about how to structure the ownership of creativity.

So along came a bunch of Danes who seem to have missed the meeting that made clear this was just a metaphor. "Free as in free software," they explained when rolling out Free Beer, or, as their website now says, "Free as in free speech."

Free Beer is free in that its recipe and all of its branding are available on the Web for anyone, including established businesses, to use, improve on, and of course make money from. The only requirements for using Free Beer's recipe and branding are that you have to credit Free Beer and that any improvements to the recipe or branding have to be published and openly licensed for others to use. All of this, in fact, is helpfully set forth on Free Beer's label.

The folks behind Free Beer are not the first to think about moving the open source approach beyond software, of course. In recent years, proposals have been made for open source production of medicines to treat tropical diseases, which for economic reasons tend to attract disproportionately little research capital. Genetically modified crops have also been the focus of open source initiatives.

But many observers have pointed out that for open source, moving beyond software may not be all that simple. Most of the effort that goes into creating a computer program goes into the intellectual property; there's very little start-up expense and essentially no manufacturing expense. So if you have access to software under an open source license, it is relatively easy to participate in open source projects. With a physical product like beer, comparatively little of the expense is tied up in the intellectual property. Even with an open source recipe, you still have to brew, bottle and ship the stuff.

And beer in particular is an unlikely beneficiary of open source methods. In both the United States and Europe, recipes, as a general rule, can't be copyrighted (or patented or trademarked, for that matter). To the limited degree that recipes for commercial foods are protected from disclosure, it is by trade secret law, not by these more classic forms of intellectual property law. It's trade secret law, for instance, that keeps Coca Cola's "secret" formula under wraps.

Thus it seems fair to ask whether the Free Beer project risks undermining its mission of spreading the word about the open source approach with a product that doesn't particularly need its help. Free as in free speech, not as in free beer indeed.

For Free Beer's enthusiasts, however, such close scrutiny misses the point. Free Beer isn't designed to topple Budweiser, and it doesn't have to change the landscape of global brewing to succeed. It can succeed by getting people to think about the fact that there are different ways to structure the rules that govern the ownership of creativity. If it happens to produce a good beer in the process, all the better.

Henry Lanman is a lawyer in New York City.