USA / INTELLECTUAL PROPERTY / OPEN SOURCE SOFTWARE

Fordham IP, Media and Entertainment Law Journal, Vol X No 3, Spring 2000

Open Source Software: The Success of an Alternative IP Incentive Paradigm

Marcus Maher

In this article, the author takes as his starting-point the proposition that the protections afforded by intellectual property law are designed to produce economic incentives to "promote the progress of science and the useful arts". But he goes on to point out that the open source software movement, which has gained publicity as the popularity of the Linux operating system has grown, provides an alternative to the economic incentives that dominate the thinking of US intellectual property policy and that open source software attains high technical standards despite the relative absence of economic motivation for the creators of this software. The explanation for this phenomenon, according to the author, lies in the science of complexity. The article gives examples of the programs and packages developed through the open source process: in particular, Apache, BIND, Linux, Mozilla, Perl and Sendmail. It describes the intellectual challenges involved in the process ("the pure pleasure of hacking is one of the reasons why individuals contribute to open source projects"), the forms of open source licence (such as the general public licence, requiring only that enhancements and derivatives should be subject to similar licensing conditions), the contributions of academia and the Internet to the open source culture and the general concept of free software. The article goes on to describe complexity theory and the nature of open source methodology as a complex system. It is not linear or centralised; and it is one of the characteristics of intellectual property protection that it encourages linear development and centralised control. Open source software is unlikely, by its very nature, to limit competition - because of the public licences, Red Hat could never emulate the practices of Microsoft, - but it can serve as an alternative to software protected by intellectual property only if the development context is complex. [20037]