Journal of Intellectual Property Law & Practice Advance Access originally published online on April 25, 2007
Journal of Intellectual Property Law & Practice 2007 2(6):382-396; doi:10.1093/jiplp/jpm053
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© The Author (2007). Published by Oxford University Press. All rights reserved
Uneasy détente: strengthening the market's adaptation of the GNU General Public License in common law jurisdictions
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 to balance the limitation of software licences in contract and copyright law with the goals of open-source software.
Key points: This article evaluates common law approaches to software licences 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 the UK and other Commonwealth countries. 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 co-exist. 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.
Key Words: One of the major features of the creative side of the software industry has been the tension between so-called ‘open-source’ and ‘closed-source’ models for the development of computer programs, the one leaning more towards sharing and co-operation, the other towards a proprietary business model. • Like software itself, the license upon which open-source is based, the GNU General Public License, is subject to continued evolution in order to meet the changing and increasingly complex needs of the software Community. • This article probes the efficacy of both open-source and closed-source approaches in the light of case law on the parameters of copyright protection, concluding that both legal and economic considerations demand their co-existence
Correspondence: * Director of Business Development, ImageStream Internet Solutions, Inc.; J.D. Candidate, 2008, Indiana University School of Law—Bloomington. E-mail: dhass{at}imagestream.com. Thank you to Professors Christiana Ochoa at Indiana-Bloomington and Andy Spanogle at George Washington University Law School for inspiring this research. Special thanks to Professor Louise Longdin, the University of Auckland Faculty of Law, and Oxford University. Any errors and oversights are solely attributable to the author.