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Abstract:
Some free or open source software infects other software with its licensing terms. Popularly, this is called a viral license, but the software is not a computer virus. Free or open source software is a copyright based licensing system. It typically allows modification and distribution on conditions such as source code availability, royalty free use and other requirements. Some licenses require distribution of modifications under the same terms. A license is infectious when it has a strong scope for the modifications provision. The scope arises from a broad conception of software derivative works. A strong infectious ambit would apply itself to modified software, and to software intermixed or coupled with non open source software. Popular open source software, including the GNU/Linux operating system, uses a license with this feature. This article assesses the efficacy of broad infectious license terms to determine their incentive effects for open source and proprietary software. The analysis doubts beneficial effects. Rather, on balance, such terms may produce incentives detrimental to interoperability and coexistence between open and proprietary code. As a result, open source licensing should precisely define infectious terms in order to support open source development without countervailing effects and misaligned incentives.

software, code, foss, f/oss, open source, software development, oss, moral right, right of integrity, collaboration, programming, linux, GNU/Linux, GPL, general public license, OSD, open code, apache, SCO, viral code

Abstract:
This Article analyzes legal protection for open-source software by comparing it to the venerable civil law tradition of moral rights. The comparison focuses on the moral right of integrity, with which one may object to mutilations of her work, even after having parted with the copyright and the object that embodies the work. The parallel apparatus in open-source licensing is conditional permission to use a copyrighted work. The conditions include that source code be available and that software use be royalty free. These conditions facilitate open-source collaborative software development. At the heart of both systems is the right for creators to control the view that a work presents. In the open-source system, this is the Collaborative Integrity of open-source software. The history and legacy of moral rights help us better understand Collaborative Integrity in open-source software. The right of integrity in some international jurisdictions may apply to software, thus raising questions whether it hurts or helps open-source software. Building from these insights, this Article evaluates whether the Collaborative Integrity in open-source software deserves protection as a separate right, just as the right of integrity developed separately from pecuniary copyright in civil law jurisdictions.

software, foss, f/oss, open source, software development, oss, moral right, right of integrity, collaboration, programming, linux, GNU/Linux, GPL, general public license, OSD, open code, apache, SCO

Abstract:
Theorists have posited a number of causal factors underlying Free and Open Source Software (FOSS), including software quality, development advantages, economic based justifications, and sociological factors. Presupposing that FOSS is a multi causal phenomenon, this article proposes that a full cataloging of its causes includes the symbiotic interplay between exit and voice for FOSS user adoption, as these two are conceptualized in Albert O. Hirschman's book Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations and States. Exit and voice cooperatively help sustain FOSS through the institutional mechanism of the FOSS license. To demonstrate this, I analyze four situations to show how this framework is important to a full understanding of FOSS and its future. First, even with attendant uncertainties in its novel legal landscape, users adopt FOSS to escape proprietary licensed software. This exit is tinged with indirect voice. Second, this indirect voice arises from collaborative projects to develop FOSS, which contains both exit and voice. The very same code and license that provides the exit carries the voice. Anyone can view the source code, and the FOSS license associated with it, to see how it works and what it might say. Furthermore, FOSS use is an expression of the functional freedom it promises. Third, complementing exit by users are technologists who contribute, extracurricularly, to open source projects. Affiliation with FOSS signals the technologist's values, and these may radiate into her home organization as a form of indirect voice. Fourth, from its beginning, the FOSS movement has employed direct voice. Its norm entrepreneurs use rhetoric and persuasion to reinforce FOSS's disciplining effect on an entire industry. This message is enhanced by the presence of noticeable exit, and the increasingly credible threat of exit as viable FOSS projects proliferate. Thus, FOSS manifests unique combinations of indirect and direct exit and voice. Through these four situations, this article examines exit and voice combinations in light of copyright based open source licensing on the one hand, and patent law on the other. The FOSS copyright based licensing scheme helps channel FOSS into uses where both direct and indirect exit and voice are concentrated and synergistically reinforce. The interplay with patent law generates voice because patent law, at least theoretically, inhibits exit to FOSS and thus pressurizes the voice mechanism in Hirschman's framework. The cacophony of Europe's debate concerning its directive for computer implemented inventions is an example. Understanding FOSS based combinations of exit and voice in light of this framework helps participants and policy makers formulate legal, licensing and policy strategies to guide the movement and respond to its evolution.

software, code, foss, f/oss, open source, software development, oss, collaboration, programming, linux, GNU/Linux, GPL, general public license, OSD, open code, apache, SCO, viral code, hirschman, antitrust, market

Abstract:
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.

software, code, foss, f/oss, open source, software development, oss, collaboration, programming, linux, GNU/Linux, GPL, general public license, OSD, open code, viral code, EMR, EHR, personal health record, electronic medical record, electronic health record, health information technology

Abstract:
Patent law, by necessity, needs some way to evaluate inventiveness. Otherwise, it will grant rights to advances not worth "the embarrassment of an exclusive patent." The innovations of version two of the Free Software Foundation's (FSF) GNU General Public License (GPLv2), arriving in 1991, could not, under U.S. patent law at that time, have been meaningfully measured against patent law's criteria, often referred to as the five elements of patentability. The first element of patentability, statutory subject matter, would have excluded the GPLv2's copyright-based licensing technique as a "business method." A variety of industry developments in the decades following GPLv2's arrival, combined with the license's potent ideological force and clever use of copyright law, propelled FOSS licensing into a prominent and path-breaking place within information technology worldwide. Its force and presence, and lightning-rod character, have grown over time, with GPLv2 remaining the dominant license in mind-share, if not code-share. In addition, all of this occurred without patent protection for GPLv2's unique licensing technique. This then raises the counter-factual inquiry for this symposium article: what might have occurred differently if GPLv2's licensing method had been patentable? In other words, if the U.S. patent law of statutory subject matter in 1991 was sufficiently permissive, and if the FSF and Richard Stallman successfully patented the novel licensing approaches of GPLv2, would patent protection have altered the FOSS movement's two-decade trajectory through information technology and the Internet? If so, can we estimate in what ways? The Article's assessment is that GPLv2 could readily meet the other four elements of patentability (with non-obviousness being the closest call compared to prior sublicensing schemes), and that the FOSS trajectory would change minimally, due to a variety of factors, including practical constraints on the enforcement potency of patent claims to GPLv2, competition from other types of FOSS licensing, and strategic considerations for a variety of players and camps within the FOSS movement. However, in the counterfactual, license proliferation diminishes, and dual licensing may be foreclosed.

software, code, foss, f/oss, open source, software development, oss, collaboration, programming, linux, GNU/Linux, GPL, general public license, OSD, open code, viral code, patent, intellectual property

Abstract:
Despite their beneficial influence on interoperability and markets, problems of detrimental opportunism occur with technology standards, including standards implemented in software, which this Article calls "Software Standards." Inspired by new perspectives on the study of semicommons in the history of real property, this Article contemplates the substitutability of free and open source software ("FOSS") for traditional standard-setting approaches. Standards are analogous to semicommons, where public and private use interact, raising the possibility of opportunistic influence on the Software Standard to increase private gain at the expense of the public benefit in a more uniform standard. With its source code disclosure requirement, FOSS shifts and dampens this opportunism, although various limits influence the reach of its effect. The political economy around a standard will express itself differently under a FOSS implementation, and clearing intellectual property rights in the standard is no more certain than under the traditional standard-setting approach.

software, code, foss, f/oss, open source, software development, oss, collaboration, programming, linux, GNU/Linux, GPL, general public license, open code, patent, intellectual property, standard