Software's Copyright Anticommons

67 Pages Posted: 30 Mar 2016 Last revised: 24 Jan 2017

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Date Written: March 28, 2016

Abstract

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has not been viewed as a significant source of anticommons problems. But this Article argues that copyright is an increasingly significant cause of anticommons concerns in the software context for at least two related reasons. First, the increasingly collaborative nature of much modern software innovation means that any given software resource is subject to dozens, hundreds, or even thousands of distinct copyright interests, each of which can ultimately hamper use of the software resource. While collaborative innovation licensing models help reduce the threat of any given copyright holder restricting use of the software resource, these licensing models do not altogether eliminate such risks and, in fact, actually create risks of holdup and underuse that have previously received less attention than they are due. Second, interoperability needs in the growing “Internet of Things” and “cloud” economies demand sharing and reuse of software for these ecosystems to work. Yet because these technological ecosystems implicate thousands of different parties with distinct copyright interests in their software, the threat of any one of those parties ultimately using its rights in ways that inhibit the successful development and use of the Internet of Things and cloud economies looms large. In order to illustrate some of these anticommons problems in practice, this Article examines a recent high-profile software copyright dispute between Oracle and Google.

As a possible solution to these types of problems, this Article assesses the merits of more explicitly adapting copyright’s fair use defense to the collaborative and interconnected nature of modern software innovation. The Article concludes by arguing that copyright disputes in other fields of creativity characterized by collaborative, interconnected development may also merit such fair use adaptations. Otherwise, anticommons problems may increasingly affect those fields as well.

Keywords: copyright, anticommons, fair use, software, innovation, intellectual property, open source, free software, Oracle, Google, Android, Java

JEL Classification: D23, D45, H41, H42, K11, K19, K29, O31, O34

Suggested Citation

Asay, Clark D., Software's Copyright Anticommons (March 28, 2016). 66 Emory Law Journal 265 (2017); BYU Law Research Paper No. 16-08. Available at SSRN: https://ssrn.com/abstract=2755732

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

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