Free Software and the Law - Out of the Frying Pan and into the Fire: How Shaking Up Intellectual Property Suits Competition Law Just Fine
Swinburne University of Technology; European University Institute - Department of Law (LAW)
August 2, 2013
Journal of Peer Production, Forthcoming
Free software is software which encompasses the freedom of the user to share, copy and modify the software. It is defined in opposition to ‘proprietary’ or ‘closed source’ software, which is licensed according to the exclusive right of the copyright holder usually in a much more restrictive fashion than with free software (such as imposing a charge on the licensee to use the software, withholding the source code, and prohibiting users from redistributing the software to others). Often proprietary software is not interoperable, and thus incompatible, with other software. Usually a user does not have to pay to access free software, whereas proprietary software will encompass a charge for the user. Although this is not necessarily the case, since what makes proprietary software proprietary is more the control that the copyright holder has over how the software is distributed, whereas with free software anyone with a copy can decide whether and how much to charge for a copy and related services – but then someone else with the same copy might decide to redistribute the same thing for free.
Free software may sometimes constitute what Benkler (2006) terms ‘commons based peer production’, that is, initiatives produced by decentralised individual users which constitute a nonhierarchical, non-market nonproprietary alternative to information production by corporate or State entities. However, free software projects are not homogenous (De Paoli, Teli & D’Andrea 2008), and in practice true examples of commons-based peer production are few and far between. There is corporate involvement in many free software projects, usually from the software industry. Corporations have various motivations to participate in free software projects, for example to benefit from the quick feedback and marketing provided freely by the user community built up around the project. Even if special licences are used to ensure the software can be used for free and freely, corporations may still be able to assert a copyright over the specific parts of the code their employees have produced which they may be able to re-licence under other, ‘traditional’ licences and so gain a profit (Robles, Duenas & Gonzalez-Barahoma 2007). While ‘true’ commons-based peer production might prove something of a headache for legal regimes such as competition law, as will be discussed in more detail below, initiatives which involve corporations while seeming at first blush unorthodox are more easily subsumed into the understanding of other regimes such as competition law.
From here, this article will firstly analyse the theoretical bases behind intellectual property and competition law, and their latter interaction with neoliberalism. Then, the potential clash between free software and competition law will be explained, followed by the two case studies, which will then be analysed, ending with some concluding remarks.
Keywords: free software, intellectual property, competition law, antitrust, critical legal studiesAccepted Paper Series
Date posted: August 4, 2013
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