Free Software and the Law - Out of the Frying Pan and into the Fire: How Shaking Up Intellectual Property Suits Competition Law Just Fine

Journal of Peer Production, Issue #3 The Critical Power of Free Software

6 Pages Posted: 4 Aug 2013 Last revised: 25 May 2014

Angela Daly

Queensland University of Technology - Faculty of Law; Swinburne University of Technology; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: August 2, 2013

Abstract

Free software is viewed as a revolutionary and subversive practice, and in particular has dealt a strong blow to the traditional conception of intellectual property law (although in its current form could be considered a 'hack' of IP rights). However, other (capitalist) areas of law have been swift to embrace free software, or at least incorporate it into its own tenets. One area in particular is that of competition (antitrust) law, which itself has long been in theoretical conflict with intellectual property, due to the restriction on competition inherent in the grant of ‘monopoly’ rights by copyrights, patents and trademarks. This contribution will examine how competition law has approached free software by examining instances in which courts have had to deal with such initiatives, for instance in the Oracle Sun Systems merger, and the implications that these decisions have on free software initiatives. The presence or absence of corporate involvement in initiatives will be an important factor in this investigation, with it being posited that true instances of ‘commons-based peer production’ can still subvert the capitalist system, including perplexing its laws beyond intellectual property.

Keywords: free software, intellectual property, competition law, antitrust, critical legal studies

Suggested Citation

Daly, Angela, Free Software and the Law - Out of the Frying Pan and into the Fire: How Shaking Up Intellectual Property Suits Competition Law Just Fine (August 2, 2013). Journal of Peer Production, Issue #3 The Critical Power of Free Software. Available at SSRN: https://ssrn.com/abstract=2305038

Angela Daly (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Swinburne University of Technology ( email )

Cnr Wakefield and William Streets, Hawthorn Victor
3122 Victoria, Victoria 3122
Australia

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

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