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.

  1. I’m confused about your use of the term “shrink wrap.” Doesn’t that typically refer to a license restricting the terms of a purchase that isn’t accessible until after purchase is made?

    The difference between free software is that it is:
    1. Mostly free (as in costless), so there isn’t the issue of having to purchase the product before knowing its conditions.
    2. Largely provided in source code form opposed to binary, so you can look at the software before agreeing to all its terms.
    3. Different in content. Debates about shrink wrap licenses are generally centred around the validity of imposed and really restrictive conditions. Free software licenses with provisions requiring that it stay free are, at least in my opinion, less imposing on a user than requirements that the software be only used at one computer, etc.

    I’d argue against the assertion that free software licenses are fundamentally contradictory. They provide an imperfect protection against exploitation from the proprietary system. This makes them necessary- but only as far as things currently stand, not integral or definitive of the movement. Also, free software licenses don’t always insist that the product be distributed on the terms it was granted. There are many people further to the right then Stallman who aren’t looking to break down the intellectual property regime as a whole and many licenses that allow for use in proprietary software (even the GNU General Public License has the Lesser General Public License alternative).

    The issue with UCITA is that it grants software companies powers beyond what they currently have, such as restrictions on reverse engineering, while limiting vendor liability. I’m not sure who this benefits other than proprietary companies.

  2. The question of the enforceability of shrinkwrap licensing terms has always troubled me, but not because I find them to be unconscionable. My main problem is that the “rolling contract” theory, upon which most cases have upheld shrinkwrap licenses, does not require sufficient notice to the consumer.

    This issue, however, isn’t necessarily present when dealing with open source software. OSS is most often made available via download. As such, the end user usually faces “clickwrap” licensing terms not shrinkwrap licensing terms. This distinction is important in my mind because of the improvement in most clickwrap.

    Unlike with shrinkwrap which often gives the purchaser no indication that he or she is agreeing to the additional, undisclosed terms simply by opening the package, clickwrap terms are readily available to the end user. Often, the user must actually scroll through all of the terms in order to accept them. This is a vastly superior, although imperfect, approach to licensing terms.

  3. Actually, I think that OSS licenses are a little more elegant than shrink/click-wrap agreements. The latter type rest on binding you to some set of restrictions based on an action (opening the package or clicking). The company can then say something to the effect of: “You clicked ‘I Agree’ so you are bound in contract not to install this software on two computers/use it for commercial purposes/etc.” These restrictions may be reasonable, but they’re not really natural–in the sense that they go beyond the default restrictions copyright would place on a person.

    OSS makes no demands of the individual end-user, the licenses only govern the copying and distribution of the software. Areas governed by copyright law. Rather than try to say that the copier agreed to the license, the OSS author says: “I own this. What gives you the right to copy it?” Assuming the copier has complied with the license, he gets to say: “The license let me do it.” Without the permission you get from complying with the license terms, you can’t copy or distribute the software without infringing the author’s copyright.

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