Uneasy Detente: Strengthening the Market's Adaptation of the GNU General Public License in Common Law Jurisdictions

Abstract

Legal context. The phenomenon of open source software, and especially the exponential growth of its most successful project, Linux, has spawned one of the most hotly debated topics in technical and legal communities. The communities attempt the balance the limitation of software licenses in contract and copyright law with the goals of open source software.

Key points. This article evaluates common law approaches to software licenses, and examines the applicability of international sales of goods treaties. The American adaptation of copyright law to computer software provides a foundation for analysing decisions in Navitaire v easyJet Airline and Ibcos Computers v Barclays Mercantile Highland Finance. It describes the Linux community's adaptation of open source development models to accommodate the realities of copyright law while encouraging participation from commercial vendors and their considerable resources.

Practical significance. Courts and market inertia will force both the open source and closed source models to coexist. Legal practitioners worldwide have the opportunity to help the software community embrace both open source and closed source developers by explaining the utility of this adaptation in both legal and technical arenas.

Keywords: open source, GPL, copyright, software, software licenses, software licensing

JEL Classification: K1, K12, K33