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Open Source Software_The Future Ahead

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Open Source Software_The Future Ahead

  1. 1. Journal of Intellectual Property Rights Vol 13, May 2008, pp 218-224 Open Source Software: The Future Ahead Sanjanaa Chindalia† The WB National University of Juridical Sciences, NUJS Bhavan, 12 LB Block, Sector – III, Salt Lake City, Kolkata 700 098 Received 5 September 2007, revised 9 April 2008 The proliferation of computer technology and advent of Internet have created many new relationships and problems that raise questions about traditional legal and economic principles. The development of ‘open-source software’ is an example of this phenomenon.1 Open source software is one, where the source code is available and the user can modify the software to suit his needs. Though the open-source software industry has not completely replaced the conventional software industry, there has been a considerable invasion into its space. The entire discourse is centred around innovation and growth on the one hand and proprietary rights on the other. The object of this article is to understand open source software, by analysing the manner in which it uses principles of copyright law to provide free access to software. Further, it also looks into the implications of such a movement on software programming. The article divided into four parts, traces the history of the movement, thereby understanding the concept of open source software. This part also looks into the paradoxical situation whereby norms of copyright law have been used as ‘copyleft’ to counter the impediments put forward by copyright law. The second part of the article discusses increasingly important role played by the open source software in the development and dissemination of software programs. The third part discusses the long-term implications of this movement on the software industry and thereby restricting to the most famous open source license i.e. GNU GPL. The last section contains concluding remarks. Keywords: Open source software, copyright law, GNU GPL, copyleft, Free Software Foundation Copyright law is a bundle of exclusive rights given to the author, composer or artist of an original work. It rewards them with the exclusive right to reproduce the work, prepare derivative works based on the work, and publicly distribute, perform or display the work. Copyright protects the original literary work inscribed in the software program and prevents further reproductions of the same. However, extending traditional norms of copyright protection to computer software has spearheaded a movement known as the ‘open source software movement.’ Open Source Software To understand which part of the software program falls within the ambit of copyright protection, one needs to understand the concept of object code and source code. The source code is the set of non- executable instructions written in programming languages such as ,C, or C++, etc., whereas the format of instructions in binary language which control the working of the computer is known as the object code. What is launched in the market is the object code, whereas the source code is withheld. This is because the source code can never be retrieved from the object code. However, in the case of open source software, the source code is freely available and the user is free to copy, modify or distribute the software program without licensing restrictions. The core distinction between open source software and its proprietary counterpart is that the former makes available to its user the knowledge and innovation contributed by the creator of the software in the form of the source code; this not only permits but also encourages interested programmers to become involved in the continuing development of the software, disseminate knowledge about the inner workings of computer artifacts and breed independence in the community of software users.2 It has also been argued that open source software may be the only viable source of software in developing countries, where programming talent is available but the prices for proprietary software licenses are prohibitive.2 The distinction between open source software and proprietary software lies in the freedom of using the software and the licensing structure; while the proprietary software dealers release into the market the software program by concealing the source code with a number of terms that prohibit the use or __________ †Email: schindalia@gmail.com
  2. 2. CHINDALIA: OPEN SOURCE SOFTWARE: THE FUTURE AHEAD 219 limit the use of the software.3 The software released through open sourcing is under a special class of license known as the General Public License (GPL), which encourages and permits users to use and improve the source code, whereas proprietary software restricts the user’s right to use.3 In the case of open source software, programmers freely share the source code and collaborate globally over the Internet.4 It provides a rich field to explore the processes of creation, accumulation and dissemination of knowledge in spatially dispersed settings where project membership is fluid and participation is volatile. It represents a special example of decentralized ‘project-based learning’.5 Open source software can be analysed as a process innovation: A new and revolutionary process of producing software based on unconstrained access to source code as opposed to the traditional closed and property-based approach of the commercial world.6 People at times get confused with the terms: Open source, public domain, freeware and shareware software. Some softwares are released into the market without the author claiming any copyright over his work, the same is said to be distributed in the public domain. Such software can be used, work can be sufficiently modified, author’s name can be removed, etc. However, in the case of open source software, the creator of the software has copyright over his work, and can still assert his right over the creation. Open source software is also different from shareware or freeware software. In each of these cases, the developer offers a standard license, with special pricing terms or at no price but does not give access to source code or right to make derivative works. Such software is often referred to as being ‘free’, but it is usually subject to the same licensing restrictions as the commercial software.7 The Open Source Software Movement The most important piece of open source software, is the operating system GNU/Linux – an open source equivalent of the Unix operating system which can be run on most PCs. Goaded by the philosophy that commercial development of software would result in a loss of skilled and independent programmers, and ultimately lead to a loss of innovation and creativity, Richard Stallman, the father of open source movement, in the year 1984 came up with a project called GNU, aimed at the development of a software system compatible to the Unix, to be made freely available to all. Stallman established the Free Software Foundation (FSF) for the promotion of free software in the year 1985. Though the GNU project was catching up in the race with the proprietary software, GNU lacked the kernel8 , which was essential to activate the hardware of the computer. Linux, developed by Linux Torvalds in 1991, solved this problem by providing the Linux core, the kernel necessary for running the GNU operating system.2 Perhaps the most important goal of the GNU Project, was to promote Stallman’s philosophy regarding software development, i.e.‘information is community property and all software source [code] should be shared.’9 In Stallman’s mind, proprietary software, with its source code closed off from the public, prevented the sort of cooperation and communitarian spirit necessary – in Stallman’s opinion – for advancing software development.9 Stallman, founder of the Free Software Foundation, describes four values embodied in the phrase ‘free software’10 : Freedom to run the program, for any purpose; Freedom to study how the program works, and adapt it to ones needs. Access to the source code is a precondition for this; Freedom to redistribute copies so one can help ones neighbour; and Freedom to improve the program and release improvements to the public, so that the whole community benefits. Access to the source code is a precondition for this. ‘Free software’ does not mean free of cost or zero cost. It means software whose source is available to all to use, modify or distribute it further. As Stallman points out, ‘when I speak of free software, I’m referring to freedom, not price. So think of free speech, not free beer.’11 To make the free software, available to all, Stallman placed it on the Internet, the most easily accessible and apt ‘public domain’. However, the project faced one problem whereby the users would modify the programs according to their needs, and then assert proprietary rights over such modified work. For example, if X used the source code of a program ‘A’ (original program –free software), to modify it to suit his own needs and came up with a program ‘B’(derivative software), since there has been labour invested by X, he can gain proprietary rights over B. This process would ultimately abort and invalidate the very object of the
  3. 3. J INTELLEC PROP RIGHTS, MAY 2008220 GNU project and would obstruct the free flow of information thus hampering the process of creativity and innovation. To counter this problem Stallman used the tenets of copyright law, twisted it around to come up with something called ‘Copyleft’. Copyleft and GPL Richard Stallman realized that without any legal mechanism to protect free access to software, anybody could use the available source code, modify it and then use proprietary rights to prevent free access to such modified version. To make the derivative work accessible, he came up with GPL. The GPL covers the initial program and ‘any derivative work’ under copyright law: that is to say, a work containing the program or a portion of it, either verbatim or with modifications and/or translated into another language.12 GPL uses the concept of copyleft. Copyleft is not some sort of left-wing, revolutionary change in basic conceptions of intellectual property; copyleft is copyright.13 To copyleft a program means, that it is first copyrighted, after which distribution terms are added that provide a right to use, modify and redistribute the program’s code or any program derived from it but only if the distribution terms are unchanged. Thus, the code and the freedom become legally inseparable.14 The copyleft license, by asserting copyright over the software and by limiting the user’s rights subject to the terms of the license, acknowledges the existence of copyright as an integral part of the open source movement.2 The concept of licensing under conventional copyright law is very different from the one discussed above. The owner of a copyright may grant an interest in the copyright by way of a license.15 For example, the author of a novel may license the right to reproduce the work in hard-back to one person and paper-back to another, the serialization rights to newspapers and magazines, film rights and dramatization rights to others and the translation rights to yet another.16 Firstly, licensing under copyright law, the proprietary rights are seldom transferred and a licensee has the liberty to use the copyrighted work with some restrictions. Secondly, copyright being a bundle of rights, a license may provide a part of such rights to one licensee and another part of the rights to some other licensee. On the other hand, copyleft licenses the software programs under the GNU GPL through its licensing terms and agreement guarantees users the freedom of distribution of free software, freedom to receive the source code and the liberty to modify or alter the software or use it in new free programs.17 The preamble18 to the GPL ensures that the source code of a program, gets transferred to another user with the same freedom including the freedom associated with derivative works. For example, when a user uses a software program as a GPL licensee, he enjoys the right to use, modify or distribute the software program. In the given case when he modifies the software program and creates a derivative version of the software, GPL demands him to further license this derivative version and release the source code of the changes or modifications to the community under the same terms as those given under the original license. Innovation and Growth through Open Source Software In recent years there has been a surge of interest in open source development. A number of open source products, such as, the Apache web server, dominate product categories.19 In the personal system, operating system market, International Data Corporation estimates that the open source program Linux has from seven to twenty one million users worldwide, with a two hundred percent annual growth rate.20 Many observers believe that it represents a leading challenger to Microsoft Windows in this important market segment.19-21 The adoption of GNU/Linux and applications like Open Office and Mozilla Firefox for desktop computers has not been as rapid, but there is growing interest evident amongst large-scale government, business and end users.22 Due to the large number of users accessing the open source software, this movement aims at bringing about a new era in the history of software programming through its successful development and dissemination. It is surely not without sound reasons that this movement has attained such importance. Decentralized System Produces Better Results Open source software projects provide a rich field to explore the processes of creation, accumulation and dissemination of knowledge in spatially dispersed settings where project membership is fluid and participation is volatile. They represent a special example of decentralized ‘project-based learning’.5,23 Differently from standard industry, where software is developed in-house by firms and then sold out as a finished product to customers on the market, in open source software projects as many as thousands of skilled programmers and users collectively develop
  4. 4. CHINDALIA: OPEN SOURCE SOFTWARE: THE FUTURE AHEAD 221 the software online via the Internet in a decentralized, highly interactive, knowledge intensive, apparently unmanaged process.23,24 The source code, which is the basis of the software, is not a trade secret but open for inspection and change by other programmers and users without the legal restrictions typical of commercial software.24,25 Due to this feature , the software developed is of a higher quality in comparison to proprietary software. The fact of having numerous contributors, process of undergoing an iterative development and following debugging and testing cycles establishes the reliability and stability of open source software over proprietary software.3 Customization and Bug-Fixing Benefits The great advantage of direct innovation by users over innovation by manufacturers, from the users’ point of view, is captured by the well-known adage: ‘If you want something done right, do it yourself!’ In the case of new product and service development this adage holds because (1) a manufacturer cannot know what a user wants to the depth and detail that the user does, and (2) even if a manufacturer does know exactly what a user wants, it will not have an incentive to provide exactly that.26 Further, the cost of contributing to an open source software project can be off-set if the activity brings about private benefit for the programmer and his or her firm.19 Thus, one of the advantages, that has been noted by the open source advocates is that the bugs27 in a software program are easily detected and fixing of the bug is taken care of by one of the numerous programmers working on the software. Diversity in Ownership Leads to Further Innovation Since most licenses for open source software do not allow monopoly even over the derivative works, it ensures continuous availability of the program and its source code. Even when a developer from whom the software owes its origin ceases to work on the program, further availability and improvement of the program is guaranteed by a different developer, who taking advantage of the licensing scheme of open source is able to produce new and improved versions of the same.28 Open source software incorporates demands and practical knowledge that the users themselves develop in designing and testing software online. Knowledge creation and dissemination take place in a fast and cost-effective way, challenging conventional views that see the market a superior vehicle for creating and transferring knowledge. In a nutshell, our point is that open source software projects are evolutionary systems based on dense interactions between humans and technical artifacts within an electronic media. In such environment knowledge, processes develop by means of variation, selection, and stabilization, gaining a distinctive ecological quality.26 The Future That Lies Ahead: Implications of the Movement on Questions of Software Protection The Internet enhances social connectivity and facilitates its conversion into purposeful collective action in a very cost-effective way, becoming the primary medium for programming, communicating and coordinating.26 Open source activity systems have a higher capability to evolve and regenerate themselves because they can always count on a broad variety of participating agents and exploit a large pool of freely circulating resources.26,29 Unlike its proprietary counterparts, open source software is based on particular license terms, which allow any user to freely use, modify, and redistribute the original software.30 However, from the economic and legal point of view one key issue is to find out whether this original production and distribution mode is viable in the long run and can establish itself as a credible alternative to proprietary software. Copyright is nothing but a bundle of exclusive rights granted to the creator of original work. This bundle of exclusive rights include reproduction of the work created, preparation of derivative works based on the copyrighted work, distribution of copies of the work, performance of the work, communication of the work to the public, adaptation and translation of the work among others. Copyright is essentially a negative right, which prohibits rest of the world from enjoying the rights, that are available exclusively to the copyright holder. However, a person other than the copyright holder can enjoy the above mentioned rights under the exceptions of fair use or the aegis of a license or assignment given by the copyright holder The problem with the open source approach arises because, the open source movement allows enjoyment of these exclusive rights by others, thus rendering the rights non-exclusive and modifying the very nature of copyright law. Several licenses satisfy the requirements under the open source approach, however, looking at the terms of GNU GPL, and analysing the implications, it may have for infringement and other allied issues.
  5. 5. J INTELLEC PROP RIGHTS, MAY 2008222 Copyright in Derived Products The GPL sets out a two-pronged strategy: The first is to have the original author retain the copyright in the author’s code or assign it to an entity, such as, FSF that will enforce these norms. The second is to allow developers to copy, modify and redistribute the code only as long as they agree to comply with the GPL’s terms.19-31 The Preamble to the GPL makes it very clear that a person using, distributing or modifying copies of an open source program has certain responsibilities. For example, if one distributes copies of such a program, whether gratis or for a fee, one must pass on to the recipients the same freedom that one has received. One has to make sure that they too receive or can get the source code. Further, one has to show them these terms so they know their rights.31 Their policy is that any GPL work when modified shall not be further restricted. Interestingly, however, with respect to products which may be derived from software licensed under open source, GPL states that ‘if identifiable sections of that work are not derived from the program, and can be reasonably considered independent and separate works in themselves, then this license and its terms, do not apply to those sections when distributed as separate works. But when same sections are distributed as part of a whole, which is based on the program, the distribution of the whole must be on the terms of this license, whose permissions for other licenses extend to the entire whole, and thus to each and every part regardless of who wrote it.’32 Say X writes a program under GPL and distributes it to Y. Y uses and modifies (containing X’s code and Y’s own code) the program and further distributes it to Z. Z shall inturn enjoy the same rights enjoyed by X and Y. However, in another situation Y can modify the program written by X containing both X’s original code and his new code. Y can always use or distribute ‘his work’, i.e. his code if it is reasonably considered independent and separate from X’s code, and the terms of the license shall not apply to Y’s independent code when it is distributed as a separate work. Thus, if Y distributes his independent code, as a separate work to A, according to terms of a special agreement, A cannot sue Y for violating terms of the GPL. The GPL does not allow any GPL-covered work to be distributed under a non-disclosure agreement. The GPL says that anyone who receives a copy from you has the right to redistribute copies, modified or not. One is not allowed to distribute the work on any more restrictive basis.33 However, one can accept a contract to develop changes and agree not to release the changes until the client says ok. This is permitted because in this case no GPL-covered code is being distributed under a non-disclosure agreement.33 One can also release the changes to the client under GPL, but agree not to release them to anyone else unless the client says ok. In this case, too, no GPL-covered code is being distributed under any additional restrictions. The GPL would give the client the right to redistribute ones version.33 Thus, the problem that possibly might arise in such a situation is the determination of the terms ‘independent and separate works’. This is because the question whether the rules of the license shall apply or not is dependent on such distribution of one’s independent work. Section 2 of the GPL speaks about its coverage for ‘other software’. In this, ‘other software’ could mean, on the one hand, minor modifications added to an existing open source program, which the GPL would capture; or, on the other hand, completely separate software (possibly previously licensed as proprietary software) intermixed or coupled with the open source software.34 The GPL has an expansive approach because section 2 stops somewhere just short of extending its terms to other software merely aggregated with the open source program; it draws this fuzzy boundary using the rubric of the ‘whole’ - a label for a standard that is not expressly identified, but which may take its gist from the reproduction right or derivative work right in copyright.34 Disclaimer of Warranty and Limitation of Liability The ‘no warranty’35 section of the GPL clearly states that there shall be no warranty for the program and entire risk for the quality and performance of the program shall be borne by the user. Further, the license completely shields the programmer from any liability36 for damages including general, special, incidental or consequential arising out of the use or inability to use the program. The development of software under the open source approach is with the application of the mind and energy of a large number of programmers. Due to the vast number of participants in the creation of the software, it is usually impossible to attribute a particular piece of code to a programmer. As long as there is value addition to the process of creation and innovation of software, the open source approach poses no problems. However, problem arises when an infringing code is introduced into the program and the infringer cannot be traced. The burden of damage due
  6. 6. CHINDALIA: OPEN SOURCE SOFTWARE: THE FUTURE AHEAD 223 to such infringing code falls heavy on the users or licensees as the license provides no protection for them. This is an area where the user still feels safe to use proprietary software as compared to open source software. Free Riding An often discussed problem under open source software has been the problem of free riders. Free riders can be quite a common phenomenon when contributions to the code exist from innumerable number of programmers working on it. Contributing to a code may improve the program, aid in fixing bugs, add value to the program, however at the same time it could hamper development of large products in open source.3,37 Connected with the issue of free riding is the issue of motivation. The opponents of open source software say that no one invests labour if the benefits cannot be appropriated; and if benefits cannot be appropriated, motivation will lack. However, attention needs to be drawn to the academic enterprise, and in particular, scientific research. Yochai Bekler draws a corollary and explains that thousands of individuals make contributions to a body of knowledge, set up internal systems of quality control, and produce the core of the information and knowledge environment.38 These individuals do not expect to exclude from their product anyone who does not pay for it, and for many of them the opportunity cost of participating in academic research, rather than applying themselves to commercial enterprise, carries a high economic price tag.36 In other words, individuals produce on a nonproprietary basis and contribute their product to a knowledge ‘commons’ that no one is understood as ‘owning,’ and that anyone can, indeed is required by professional norms to, take and extend.36 Thus, despite the problem of free riding, motivation in various forms, will always goad people to contribute to the existing body of knowledge. Conclusion Though proprietary software interests remain powerful, free and open source alternatives have strong backers among business interests, governmental adopters, and the technical community. It is also picking up significant support. There are both free and controlled resources in a society. The question that remains to be answered in the present discourse is whether knowledge is a controlled resource or free resource and even if labour has been expended in creation of particular software, should the larger picture of distribution and dissemination of knowledge be given greater importance over the strict rules of protection under the copyright regime. The ambition of replacing the proprietary software with open source software shall remain a distant one until the legal risks involved in the area are well dealt with. References 1 Välimäki Mikko, Dual licensing in open source software industry, http://opensource.mit.edu/papers/valimaki.pdf. 2 Chopra Samir & Scott Dexter, A comparative ethical assessment of free software licensing schemes, http://www.luc.edu/philosophy/opensource/FOSSEthics.pdf. 3 Madhavan Mahesh, Use of copyright by open source software movement on computer software and its implications, Journal of Intellectual Property Rights, 8 (1) (2003) 32. 4 Schweik Charles M, Fostering open source research via a world wide web system, http://www.pamij.com/ 5_4/5_4_2_opensource.html; See also Baldi Stefan et al., Open courseware vs open source software- a critical comparison, http://is2.lse.ac.uk/asp/aspecis/20020137.pdf. 5 Lanzara Giovan Francesco & Morner Michele, The knowledge ecology of open source software projects, http://opensource.mit.edu/papers/lanzaramorner.pdf; See also Bitzer Jurgen & Wolfram Schrettl, Intrinsic motivation in open source software development, http://teaching.coll.mpg. de/econwork/BitzerSchr%C3%B6der.pdf. 6 1 Bonaccorsi Andrea & Cristina Rossi, Why open source software can succeed, http://www2.ing.unipi.it/ ~d6889/Approfondimenti/SO_Bonacc_Rossi(2003).pdf ; See also Crowston Kevin et al., Information systems success in free and open source software development: theory and measures, http://floss.syr.edu/publications/crowston2006 flossSuccessSPIPpre-print.pdf. 7 Shareware: What is a definition? http://whatis. techtarget.com/WhatIs_Definition_Page/0, 4152,212977,00. html; See also Freeware: what is a definition? http://whatis.techtarget.com/WhatIs_Definition_Page/0,4152, 212159,00.html. 8 Kernel is the fundamental part of a program, it is the part of the operating system, which is closest to the machine, it activates the hardware directly or interfaces to another software layer that derives the hardware. 9 Lee Steve H, Open source software licensing, http://eon.law.harvard.edu/openlaw/gpl.pdf. 10 FSF, the free software definition, http://www.fsf.org/ philosophy/freesw. 11 Stallman Richard, Free software: freedom and cooperation (Speech delivered at New York University, New York, 29 May 2001), http://www.gnu.org/events/rms-nyu-2001-transcript.txt. 12 Legal Issues Relating to Free and Open Source Software, 2004, edited by Brian Fitzgerald and Graham Bassett, http://www.law.qut.edu.au/files/open_source_book.pdf. 13 Pfaffenberger Bryan, Copyright strikes back, http://www2.linuxjournal.com/article/5076; See also Evers Steffen, An introduction to open source software development, http://user.cs.tu-berlin.de/~tron/opensource/opensource.pdf.
  7. 7. J INTELLEC PROP RIGHTS, MAY 2008224 14 FSF, what is copyleft? The GNU Project, http://www.gnu.org/copyleft/copyleft.html. 15 ‘A license is an authorization of an act, which without such authorization would be an infringement.’ 16 P Narayan, Law of Copyright and Industrial Designs, 2nd edn (Eastern Law House, New Delhi), 2002, p. 125. 17 GNU General Public License, http://www.gnu.org/ copyleft/gpl.html. 18 The Preamble to the GPL states: When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive the source code and can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know that you know that you can do these things. To protect your rights we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. 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. 19 Feller Joseph et al, Perspectives on Free and Open Source Software (MIT Press, Cambridge, Massachusetts , England, London), 2005, p.1; See also Peeling Nic &Julian Satchell, Analysis of the Impact of Open Source Software, http://www.govtalk.gov.uk/documents/QinetiQ_OSS_rep.pdf. 20 Kenwood Carolyn A, A business case study of open source software, http://www.mitre.org/work/tech_papers/tech_ papers_01/kenwood_software/kenwood_software.pdf. 21 Hippel Eric Von, Open source shows the way: Innovation by and for users- no manufacturer required, http://opensource. mit.edu/papers/evhippel-osuserinnovation.pdf. 22 Elizabeth Millard, Firefox continues to gain browser share, http://www.cio-today.com/news/Firefox-Continues-To-Gain- Share/story.xhtml?story_id=102003F7F7R0; See also Paklons Batist, Intellectual property and open source software, http://www.student.kuleuven.ac.be/~m9923416/ paper_ICT.pdf. 23 Lakhani Karim R & Hippel Eric Von, How open source software works: ‘free’ user-to-user assistance, http://opensource.mit.edu/papers/lakhanivonhippelusersuppo rt.pdf. 24 Why ‘Free software’ is better than open source? http://www.gnu.org/philosophy/free-software-for-freedom.html. 25 Lessig Lawrence, Open code and open societies: values of Internet governance, http://cyber.law.harvard.edu/works/ lessig/kent.pdf. 26 Osterloh Margit & Sandra Rota, Open source software development: just another case of collective invention? http://people.brandeis.edu/~amykolo/Moodle/OpenSourceSo ftwareDevelopment.pdf. 27 The bugs that are found in a software program are two-fold: bugs that are detected in the early stages of software development and hose, which produce the run-time errors. In closed software where only a sole or only a few developers are allowed to work on the source code, detection and fixing of bugs present a huge task. Due to lack of sufficient technical hands, it is the user who usually detects bugs that escape detection, on running the software program. 28 Free software/open source: Information society opportunities for Europe? Working group on libre software, http://eu.conecta.it/paper.pdf. 29 Krogh Georg Von et al., Collective action and communal resources in open source software development: the case of free net, http://opensource.mit.edu/papers/vonkroghhae fligerspaeth.pdf 30 Kuan Jenny, Understanding open source software: A non- profit competitive threat, http://emlab.berkeley.edu/users/ bhhall/soft2.pdf. 31 GNU General Public License, http://www.gnu.org/ copyleft/gpl.html. Preamble to the GPL: ‘To protect your rights, we need to prevent others from denying you these rights or asking you to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others. 32 What is copyleft? http://www.gnu.org/copyleft/. 33 Frequently asked questions about the GNU GPL, http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPL Allow NDA. 34 Vetter Greg R, Infectious open source software: Spreading incentives or promoting resistance? Rutgers Law Journal, 36 (2004) 53. 35 Disclaimer of Warranty: There is no warranty for the program, to the extent permitted by applicable law. except when otherwise stated in writing the copyright holders and/or other parties provide the program ‘as is’ without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. the entire risk as to the quality and performance of the program is with you. should the program prove defective, you assume the cost of all necessary servicing, repair or correction.; See also Jeremy Malcolm, Problems in open source licensing, http://www.ilaw.com.au/public/licencearticle.html ; Arne Paul H et al., Open source software licenses: Perspectives of the end user and the software developer, http://www.mmmlaw.com/articles/article_238.pdf . 36 Limitation of Liability: In no event unless required by applicable law or agreed to in writing will any copyright holder, or any other party who modifies and/or conveys the program as permitted above, be liable to you for damages, including any general, special, incidental or consequential damages arising out of the use or inability to use the program (including but not limited to loss of data or data being rendered inaccurate or losses sustained by you or third parties or a failure of the program to operate with any other programs), even if such holder or other party has been advised of the possibility of such damages; See also Gonzalez Andres Guadamuz, Legal challenges to open source licenses, available http://www.law.ed.ac.uk/ ahrb/script-ed/vol2-2/challenges.doc; Frost Jonathan J, Some economic and legal aspects of open source software, http://freesoftware.mit.edu/papers/frost.pdf. 37 Darmon Eric et al., Commercial or open source software? winner-takes-all competition, partial adoption and efficiency, http://greqam.univmrs.fr/pdf/seminars/gt_interaction2006- 04-10.pdf. Yochai Benkler, Coase's Penguin, or, Linux and the nature of the firm, Yale Law Journal, 112 (3) (2002) 369.[[[

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