Lawrence Lessig (2004), 'Open Code and Open Societies', in Lucy Kimbell, ed., New Media Art: Practice and Context in the UK 1994-2004, London: Arts Council of England with Cornerhouse.

For Lawrence Lessig, open source and free software are fundamental to an open and free society. Generally in the West, ideological disputes over intellectual property and the dubious benefits of copyright law have arrived at a compromise under which after a period of time works fall into the public domain. There is a complex history to this and limited copyright broke the monopoly of publishers in the 1770s. After this, works in the public domain are common property open to use without permission of the author or publishers. It doesn't necessarily follow that this is free but it is open. Lessig's project is not to dispute property but to prove 'how creativity depends on a rich commons, how one feeds on the other' (in Kimbell, 2004: 182). Clearly there are distinctions between the public domain of real things and intellectual things. For Lessig, quoting Thomas Jefferson on the nature of ideas, it is a fundamental right for ideas to remain 'inexhaustible, uncontrollable and necessarily free' (in Kimbell, 2004: 183). 

There is an ideology to this and that's why ideas are often not free. In practice, the reverse is the case in contemporary practice as Lessig explains in a sinister example of corporate crime exerting its hegemony:
'Content providers build code that gives them more control than the law of copyright does over their content. Any effect to disable that control is a crime. Copyright law gets privatised in code; the law backs this privatised code up, and the result is a radical increase in the control the content holder has over his [sic] content.' This historical irony is what he calls 'the story of how an open space gets closed. [...] An open society must resist this extreme.' (in Kimbell, 2004: 184) A free society requires this approach embedded in the principles of open source and free software. No doubt he would advocate the use of his own creative commons license agreements to protect these.

Proprietary software might be an inherently flawed concept ideologically, but it is also a technical and pragmatic fact. The cooperative efforts of dedicated hackers in general make open source and free software arguably more reliable, stable and less bug-ridden through peer review. For instance, Linux was recognised by Bill Gates and Microsoft as being superior to its own Windows operating system in 2000, and since it has become the orthodoxy to develop certain software in this way. 

Crucially, open source software is not simply distributed for free, but free in the sense that it can be adapted and changed (under certain conditions of course). This is what Richard Stallman characterises as 'copyleft' protected by the GNU public license agreement for future free provision and distribution under the same conditions. However, it has become a victim of its own success and publicity, and there are increasing anomalies like the floatation of Red Hat (an open source supplier) on the Stock Market making millionaires of its founders (John Naughton, in Kimbell, 2004: 188). Perhaps the biggest weakness of initiatives like the Creative Commons open license agreements is that it does not challenge intellectual property law. Piracy, knowingly or not, is more radical in simply ignoring the law.