Academic journal article Harvard Journal of Law & Technology

Opportunistic Free and Open Source Software Development Pathways

Academic journal article Harvard Journal of Law & Technology

Opportunistic Free and Open Source Software Development Pathways

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION  II. FREE AND OPEN SOURCE SOFTWARE ("FOSS") LICENSING APPROACHES.      A. The Permissive License Approach      B. The Copyleft Approach      C. Forking a Software Development Pathway III. FOSS LICENSES AND THE MODULARITY FRAMEWORK FOR INTELLECTUAL      PROPERTY      A. License Interaction, Opportunism, and the Modularity Framework      B. Pathways of Approach and Impeding Opportunism  IV. FLEXIBLE SOFTWARE PATHWAYS      A. Fiscal Benefit Potential Under the Permissive License Approach      B. Contributor Recruitment Under the GPL Approach   V. AGGREGATION SOFTWARE PATHWAYS      A. Software Aggregations and Hybrid Approaches      B. FOSS and Source Code in the Cloud  VI. CONCLUSION 


Every software license limits opportunism in some sense. This holds for proprietary licenses as well as for licenses this Article will call "free and open source software" ("FOSS") licenses. The license terms reflect the opportunism to be prevented. Sometimes the terms amplify the rights the license deploys. Thus, a proprietary software license prohibits copying even though the software is covered by copyright's reproduction right. (1)

Sometimes the terms of a software license invert its rights-base. For example, a FOSS license allows copying and distribution for any type of use, but requires attribution to the originator. The opportunism impeded is taking credit for the work of another. (2) Copyright's orientation is prohibiting unauthorized reproductions, but the FOSS license allows copying in furtherance of a goal: impeding some variety of opportunism in software development and information technology. FOSS licenses reflect the dissatisfaction some communities express with intellectual property protection in software. To these communities, a better alternative is no property rights in software, but failing that, software under FOSS licenses is preferable to software under proprietary licenses.

Given that some licenses work against intellectual property in software, conflicting opportunism-impedance strategies among different licenses (3) reflect tension about property rights in software. This Article's claim is that Henry Smith's modularity framework for intellectual property rights (4) gives greater insight into this tension. Inhibiting opportunism with use of a resource is part of modularity, so this Article uses a definition of opportunism inspired from Smith's work with platforms and equity: opportunism is undesirable behavior, in part because the actions are contrary to the purpose of the property rights; (5) it "is residual behavior that would be contracted away if ex ante transaction costs were lower." (6) Even with this definition, opportunism is a difficult concept to cabin. It is relative, relational, and depends on past positions among parties.

Licenses are not the same as intellectual property rights in software. Licenses shape what users may do with the software. Ubiquitous licenses can transcend the public/private divide to attain a quasi-public character. (7) Thus, license rights may be more important for users than the underlying intellectual property rights. (8)

Smith's modularity framework is based on information costs shaping the scope of opportunism-impeding intellectual property rights, and is an extension of his information costs approach to real property rights. (9) In a real property context, ex ante, trespass law allows the owner to engage in a variety of uses according to her valuation of those uses or other preferences. The power to exclude associated with the trespass rule gives the owner an incentive to develop information about possible uses and associated values and costs. (10) The right to exclude is the informational signal that acts as a boundary between the modules. One module of human activity is the owner(s) and what they do with the land. The module on the other side of the interface is all possible trespassers. …

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