Legal Implications of Open-Source Software
David McGowan | 2001 U. Ill. L. Rev. 241
The proliferation of computer technology and the advent of the Internet have created many new relationships and problems that raise questions about traditional legal and economic princi-ples. The development of "open-source" or "free" software is an example of this phenomenon. Unlike the traditional producers of computer software-Microsoft, for example-open-source software is often developed by computer programmers from all over the world, each submitting contributions to the code, and distributed without charge or for a minimal fee. Open-source software is generally passed from programmer to programmer, with the understanding that improvements may be made, but that the improvements must be distributed freely, without any attempt to "privatize" the program.
The existence of such relationships among programmers raise several interesting questions. First, how do large-scale open-source projects come into being? One open-source project, the GNU/Linux operating system, even threatens the market share of Microsoft's operating systems-a feat that calls traditional economic theories on the operation of the firm into question. A more important question is whether the open-source model is sustainable and generalizable. Ultimately, one wonders what role the law will play in the open-source community-a community that seems to operate in the absence of traditional legal principles.
In this article, which was introduced at the University of Illinois College of Law Symposium on Intellectual Property Challenges in the Next Century, Professor McGowan addresses these questions. Using the GNU/Linux operating system as a case study, he probes the organization of the open-source community and the philosophies of its leading members in order to understand how traditional firm models, intellectual property, and contract law might apply. Professor McGowan concludes by reviewing recent attempts by courts to impose traditional principles in computer software transaction disputes. Ultimately, it appears that the open-source community cannot be neatly categorized. Although many traditional firm theories-such as the formation of a hierarchy-and legal principles-such as copyright-do apply to the open-source model, these theories and principles are employed in creative ways not previously envisioned.
*Associate Professor of Law, University of Minnesota Law School.