The Rise of Open Source and Copyleft

Posted by Cyberbear on November 19, 2013 in Computer Software, Copyright Law, Open Source |

Posted by: Lauren Proper

 

500px-GPLv3_Logo.svgFree markets are generally accepted as providing the greatest opportunity for consumers of goods to obtain the best quality for the lowest prices. A free market economy is not without its flaws, however. The idealistic economic philosophy first propagated by Adam Smith’s “Wealth of Nations” has proven more theoretically appealing than functional without regulation. Issues with a free market economy include the effects of greed on price fixing and harm to consumers, race-to-the-bottom incentives that decrease consumer safety and difficulty competing with well-established distributors of goods in ways that can create monopolies or oligopolies.

Free markets do not exist solely for goods. Today, information is traded in much the same way tangible goods are. Free market economies for information suffer from the same issues that afflict free market economies for tangible goods. Some people’s desire to commercialize and profit lead to restrictions which in turn harm consumers. In an information economy, the harm to consumers deprives them of access and disadvantages people who do not have access to a wealth of information.

Harvard Professor Yochai Benkler distinguishes economies for goods from economies for information in his book “The Wealth of Networks.” Whereas a traditional good (Benkler refers to them as “rival products”) is depleted with use, nonrival products can be used repeatedly without any degradation. Nonrival products, Benkler posits, become perhaps the primary goods of social import in advanced economies. The immeasurable social and cultural importance of increased access to these goods forms the basis for Benkler to advocate for open source. To illustrate his point, Benkler posted “The Wealth of Networks” online under a Creative Commons license to allow readers to edit, augment or comment upon his work as an example of the societal benefits of peer collaboration.

Open source products encompass a variety of digital items including software, operating systems, books, music, etc. Open source products are traditionally offered free of charge and the source code or documents themselves are posted. These items do have copyright protection, but the owners of the copyright allow copying and derivative works to be created subject to certain licensing restrictions.

Two main registration systems for open source works provide access to and protection of open source works. The first system established grew out of a dislike of the Unix operating system. GNU began developing a free and open source operating system in 1984. GNU General Public Licenses (“GPLs”) are commonly used to promote open source software and other works. Open source works can be used and modified by anyone subject to the restrictions in GNU GPLs. Creative Commons, established in 2001, similarly allows users to license works for open source under different layers of protection.

Both GNU GPLs and Creative Commons create “copyleft” works which are protected by hybrid copyrights and license agreements. Essentially, these works are protected by copyright but that relinquish some of the exclusive rights subject to certain license restrictions. The GNU project defines copyleft specifically as works in which “an author can place his or her copyright into the document…and use distribution terms…which gives everyone the rights to use, modify, and redistribute the code, but only if those distribution terms remain unchanged. This ensures that the source code and the freedoms are legally inseparable.”

The GNU GPL does not prohibit the creator of a derivative work from selling its work for a profit. It does, however, prohibit the creator (called a “contributor”) from copyrighting any component of that derivative work copied from the original protected work. Part of the license agreement in a GNU GPL states “Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others. For example, if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.”

Creative Commons licenses function similarly but function in an arguably more sophisticated manner. Creative Commons offers six types of licenses with varying levels of protection for the original creator. The licenses start with an “Attribution” license, which offers subsequent creators or users the greatest amount of freedom in modification and distribution. Each subsequent category of licenses offers further restrictive use of the original work with the most restrictive license being “Attribution-Non Commercial-No Derivatives.”

As these licenses relate to open source, the ability for creators to share their works with such great freedom stems from Benkler’s discussion of rival and non-rival products. Because intellectual property – a rival product – can be used repeatedly with little or no degradation and the production costs generally are negligible or very low, opportunities exist for creators to offer these types of goods or services at little or no cost. While original creators are certainly not required to engage in this behavior, and many do not, social movement supporting the rise of open source has continuously gained popularity.

Some of the most well-known open source works include Mozilla Firefox, a free and open source software (FOSS) constituting a web browser operating under a Creative Commons Attribution Share-Alike license, and of course the Linux/GNU operating system that jumpstarted the open source movement in the 1980s.

Ultimately, the rise of open source can be attributed to a number of elements. Mainly, the ability of rival products to be reproduced at little or not cost allows creators greater flexibility to forgo profits for societal benefits. The emphasis on personal responsibility should not at all be downplayed, however. Because of the great expansion of exclusive rights in copyrighted works, specifically for computer programs, creators have the right to make large profits off of their works by exercising their exclusive rights. Some of these creators choose instead to “dedicate” their works to the public domain for certain uses that infringe upon their exclusive rights subject to certain license agreements. These creators tend to allow such uses to promote greater societal interests. This idea – that a wealth of networks is in the best interest of consumers (in this case, consumers of information) – only gains traction because of generous creators of works willing to sacrifice financial gain. Perhaps the unique nature of rival goods combined with the movement for FOSS offerings provide a solution to the issues raised by free market economies for nonrival goods and continue to create an amazingly successful free market for information in which all people have near-equal access.

While some of the issues prevalent in a free market economy for nonrival goods exist in a free market economy for rival goods, such as unequal access to the internet for a myriad of reasons, these issues can be mitigated greatly without intervention by outside sources. There can be little doubt that the rise of open source is an important component for rapid augmentation of available information and, in turn, successful promotion of the useful arts and sciences.

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