The Necessary Link Between Open Source Software and a Substantive Intellectual Property Regime

The Necessary Link Between Open Source Software and a Substantive Intellectual Property Regime

Adam Bucci is a first year law student at Osgoode Hall taking the "Legal Values: Challenges in Intellectual Property" course.

I would like to address the impact that open source software has had on our intellectual property regime.  In this post, I will: (i) outline some strong claims for significantly diluting - if not wholly disregarding - property rights in order to facilitate the prosperity of the open source revolution; and (ii) highlight some of the significant dangers for open source projects that would result from watering down IP rights.

The Anti-Property Argument

            The Free Software Foundation, an organization devoted to developing and disseminating software code freely, was established in 1983. Its founder, Richard Stallman harbours strong views for disregarding a big chunk of property rights in computer software. In a bold manner, he states:

"The idea that the proprietary software social system... is unsocial, that it is unethical, that it is simply wrong may come as a surprise to some people. But what else can we say about a system based on dividing the public and keeping users helpless?" (Stallman, 1999, "The GNU Operating System and the Free Software Movement" in Open Sources: Voices from the Open Source Revolution.)

            Scholar Pamela Samuelson shares a similar view as she takes issue with software companies' practice of implementing and enforcing "shrinkwrap" agreements, which essentially bind users to a body of non-negotiated terms upon opening the product package, or installing the software. Samuelson argues that this system propagates the property rights of software companies through the unconscionable enforcement of unfair agreements (Samuelson, "Legally Speaking: Does Information Really Want to be Licensed?"

To be sure, the general philosophy behind these anti-property views can be fairly persuasive. Various studies suggest that not only are open source initiatives more functionally efficient than their proprietary counterparts (Benkler, 2002, "Coase's Penguin..."), but they can also be more secure (Payne, 2002, "On the Security of Open Source Software"). Most importantly, scholar Anthony Clapes points to a study that indicates that adopting new technology has a much greater potential to benefit society as a whole than individuals or corporations who are actually responsible for the innovation (Clapes, 1993, Softwars, pp. 69-70). The argument follows, then, that society should not enforce those property rights that inhibit the free use of source code. However, it seems that proponents of an anti-property regime do not give full consideration to the basic aspects of open source software that rely on property rights.

Property Rights are Required for Open Source

            My basic thrust in this post can be summarized in the following quote from the Debian organization, a major group of open source developers: "To stay free, software must be copyrighted and licensed." (Debian GNU/Linux, "What Does Free Mean?..." Stated simply, in order for open source initiatives to even exist, a fairly substantive proportion of property rights must be retained.

            The fundamental philosophy behind open source is that it is "free", but, as Richard Stallman states: "Think ‘free speech', not ‘free beer'" (Gomulkiewicz, 1999, "How Copyleft Uses License Rights..." p. 183). The crux of the open source revolution is to freely distribute the source code for software, allow contributors to analyze the code, modify it, and redistribute it on the same terms. In order to ensure the fulfilment of these objectives, consumers must guarantee the vendors that those will be terms of their use. Therefore, as stated by Microsoft licensing official, Robert Gomulkiewicz, "[w]ithout licensing, the open source software development model would be nothing more than an honour system" (Gomulkiewicz, 1999, p. 186).

            Consequently, "shrinkwrap" licenses are necessary in order for open source projects to function. By virtue of the fact that open source is defined by several inflexible goals, a "take-it-or-leave-it" mentality is embedded in the major open source licenses (e.g., the GNU General Public License at The proliferation of these types of online contracts is the goal of the proposed Uniform Computer Information Transactions Act ("UCITA"). I hope that this brief analysis has provided the reader with some persuasive reasons for why the U.S. should pass the UCITA.

            In conclusion, proponents of open source software certainly have sound arguments when it comes to its efficiency, security, and social benefit. However, there is a danger in completely breaking down the barriers imposed by our intellectual property regime. Property rights are necessary both in order to ensure the continued existence of open source software, and hence, to secure the benefits that come with this technological innovation.