Slouching toward Open Innovation: Free and Open Source Software (FOSS) for Electronic Health Information

The potential for Free and Open Source Software (FOSS) to enable open innovation in a particular software market depends on the characteristics of that market. From this premise, using a case study approach, this Article argues that some software markets have characteristics that inherently disfavor initiating or expanding the use of FOSS and its unique mode of licensing the intellectual property that underlies software. The case study involves software to manage health information for hospitals or physician groups in the form of the electronic medical record, or EMR. Proprietary software venders supply most of the products for this software market. Recently, the U.S. government undertook experimental steps to promote a FOSS package for EMR, raising the question as to whether the EMR software market is amenable to FOSS. This Article describes various factors that might signal a FOSS disfavoring market, including low technical aptitude among users, differences among users in their work flow and software interface needs, users with dispassionate computing agendas, and entrenched proprietary competitors in an area supporting minimal complementary goods or services. FOSS, however, might be able to overcome these impedances in a particular software market if its unique motivational mix is strong enough. This Article describes potential facilitators to support this possibility. One such facilitator, specifically for the EMR market, but perhaps generally for other markets, may be safe harbors for FOSS development within any relevant anti-collaboration and anti-tinkering laws. Licensing facilitators include emphasizing approaches such as dual licensing or promoting FOSS contributions by contractors engaged by users. This Article concludes by mentioning potential non-licensing facilitators to augment the FOSS motivational mix for markets that might disfavor it.