The Myth of Copyleft Protection: Reconciling the GPL and Linux With the Copyright Act

Abstract

The open source community is conducting a robust debate on the intellectual property issues surrounding the GPL, the most popular of the open source software licenses, and Linux, the most successful product of the GPL to date. The Linux community has evolved its open source development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. Legal practitioners have the opportunity to help the community solidify this evolution by explaining its utility in both legal and technical arenas.

The GPL acts as the most important beacon for Linux and the rest of the open source world. The model employed by Linux to accommodate closed and open source code is a common sense adaptation of the GPL. The adaptation is also consistent with U.S. copyright law. Rather than push to change this functional approach, legal practitioners should encourage the community to embrace and solidify it. Courts and market inertia will force both the open source and closed source models that developers use to coexist. Neither purely open source nor purely closed source models for Linux will succeed without the other.

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

JEL Classification: O34, K12, K33, O31