NOTE: Failures of
formatting at this time are solely the responsibility of the instructor.
-- N.J., May 5, 2003
Open Source Software-Open
up Copyright?
Table of Contents
I. Introduction
1
A. Open Source Software
2
1. Characteristics
of OSS
3
2. Examples of OSS-Linux
4
B. Computer Program
Copyright Protection
5
II. Proprietary Software
vs. OSS-Differences and Problems
6
A. The Purpose of Copyright
Law and Its Incentive for Developers 6
1. The Economic Implications
of Copyright Protection
6
2. Incentives for
OSS Developers
7
B. Length of Copyright Protection
8
C. OSS Copyright Infringement
9
1. OSS Model of Development
10
2. OSS Model of Monitoring
and Control
12
3. Copyright Infringement
Suit
12
D. OSS Licensing Problems
14
1. OSS Licensing
15
2. Incompatibility of OSS
Licenses
16
3. Contract Warranty of
OSS Licensing
17
III. Solutions to the Problems
in OSS
18
A. Licensing Agreement Terms
18
1. Contract Warranty and
Enforceability
18
2. Resolution-Independent
Internet Entity
19
B. Legislative Regulation
20
IV. Conclusion-the Future
Development of OSS industry 21
Glossary
22
The open source movement-a
community consisting primarily of software developers and organizations
interested in the software industry revolution-poses a profound challenge
to the way software is made, reproduced and distributed and the law that
regulates it.
Traditional copyright law
gives inconsistent or insufficient protection to open source software (OSS)
compared with what it gives to proprietary software. How to interpret and
update the 1976 Copyright Act in response to the open source movement is
the focus of this paper.
It (1) begins with a description
of OSS and a representative example: Linux, (2) compares the characteristics
of OSS and proprietary software and their inconsistent treatment in terms
of copyright protection, (3) analyzes OSS licensing and operation problems;
(4) purposes solutions to OSS problems through contract, regulation by
the Internet community or copyright law, and (5) predicts the future of
OSS development.
I. Introduction
A. Open Source Software
Open source software
(OSS), is sometimes referred to as Free Software (FS). In summary, the
licenses for OSS/FS programs permit users the freedom to run the program
for any purpose, to study and modify the program, and to freely redistribute
copies of the original or modified program.1
1. Characteristics of OSS
"Open source" does not mean
merely access to the source code or free distribution. The distribution
terms of open-source software must comply with the following criteria:
1. An OSS license must not
restrict selling or distributing the software as a component of an aggregate
software package and must not require a royalty or other fee for its use.
2. The OSS program must
include the source code, and allow distribution in source code as well
as in a compiled form. The source code must be the preferred form in which
a programmer would modify the program.
3. The OSS license must
allow modifications and derived works, and allow developers to distribute
their programs under the same terms as the license of the original software.
4. The OSS license may restrict
source code from being distributed in modified form only if the license
allows the distribution of patches with the source code for the purpose
of modifying the program at the beginning.
5. The license must not
discriminate against any specific person or group of persons and must not
restrict use of the program in a specific field of endeavor.
6. The rights attached to
the program must apply to all to whom the program is redistributed without
the need for execution of an additional license by those parties.
7. The rights attached to
the program cannot depend on the program being a part of a particular software
distribution.
8. The license must not
place restrictions on other software that is distributed along with the
licensed software.
9. The OSS license must
be technology-neutral, and no provision of the license may be predicated
on any individual technology or style of interface.2
2. Examples of OSS-Linux
To understand the
difference between OSS and proprietary software, it is useful to consider
a prominent example that has been developed through the open source process.
Some of the most important members of OSS are Apache, BIND, Mozilla, Perl
and Sendmail. The one most familiar is the Linux operating system. In recent
years Microsoft Windows-the worldwide use operating system-has been threatened
by the breakthrough development of Linux. For this reason a comparison
between Windows and Linux is appropriate to our consideration of the issues.
Linux is a freely
distributable version of Unix, it is available for multiple platforms such
as x86, Motorola 68k3 and Digital Alpha. It is an implementation that follows
closely the POSIX specification that most commercial Unix versions implement.
Linux was created by and named after Linus Torvald in Finland and announced
its first version as "0.02" in 1991.4 Thanks to the help of the Internet,
many developers have devoted their time to debugging and updating the Linux
system (the latest Linux kernel5 archive is 2.5.65, which can be freely
downloaded at http://kernel.org). Because of its widespread use, Linux
can be asserted to be the open source project that has probably undergone
the greatest number of publicized tests, reviews and comparisons.6
B. Computer Program Copyright
Protection
The Copyright Act
of 1976 7 is Congress' most recent major reform of the Copyright Act "which
[with some modifications] governs most works today."8 But the term "computer
program" was not included in the copyright law subject matter until the
1980 amendment9.
The copyright clause in
the U.S. Constitution provides that copyright aims "(to) promote the progress
of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries."10
The 1980 Amendment grants copyright protection to both source codes and
object codes of computer programs.
Although patent protection
is also available it is difficult to obtain because most software is only
a new expression of an existing process. Therefore, the authors of computer
programs usually turn to "original work" copyright protection. The rights
granted by Copyright Act include the rights to reproduce the material object,
to make derivative works, to distribute the work by selling, leasing and
renting it, to make recordings, and to perform or display the underlying
work.11
Once computer programs
were included within the definition of "literary work", the Copyright Act
came to be applied to software for the purpose of restricting the public
from accessing the programs. The result is that the software developer
can make a profit by granting licenses or transferring ownership during
the copyright protection term. Given the popularity of the Internet, the
open source software industry has developed, and has come under traditional
copyright regulation even though OSS was never contemplated by the drafters
of the 1980 Amendment. But a variety of open source communities, together
with the unique characteristics of OSS, have raised a lot of new requirements
and problems challenging current copyright law- such as the scope of the
copyright restrictions. An analysis of the difference between proprietary
software and OSS can help illustrate the problems and the possible solutions.
II. Proprietary Software
vs. OSS-Differences and Problems
Linux is an example
of open source software. Its competitor, Windows, is an example of proprietary
software. Both operating systems are widely used through the world but
have been developed throughout completely different processes and marketed
with different strategies. For purposes of the paper, one of the greatest
differences between them is that Linux users have been granted what is
called a General Public License (GPL) while Microsoft is a strong advocate
of proprietary software. As a result, the developers and users of these
two kinds of software are working under totally different copyright requirements.
A. The Purpose of Copyright
Law and Its Incentive for Developers
1. The Economic Implications
of Copyright Protection
The Framers of the Constitution
specified two crucial requirements for copyright law. First, the law should
be structured to provide creators with economic rewards for their work,
rather than to provide them with congressional medals or public monuments.
Second, the law should be structured to improve society as a whole, rather
than to aid specific authors, inventors, and artists. The immediate effect
of copyright law is to secure a fair return for an author's creative labor.
But "the ultimate aim is, by this incentive, to stimulate artistic creativity
for the general public good".12
Applying the economic model
developed by Landes and Posner, the economic effect of copyright law on
innovation suggests that authors will continue to develop new works as
long as the expected profit exceeds the expected cost of creating the work.
The cost of creating a work, called the "cost of expression," rises proportionally
with the level of copyright protection because, as copyright protection
rises, authors are less free to borrow from and build on prior bodies of
work.13 Such a model can be applied to predict the author's incentive to
create when the underlying copyrighted work is proprietary software, but
it may seem inapplicable to the unique characteristics of OSS.
2. Incentives for OSS Developers
From an economic
perspective, there is a huge divergence in the development of proprietary
and OSS software. In the case of proprietary software, the legal uncertainty
coupled with marketing risks will greatly deter the proprietor's commercial
competitors. Rather than make huge investments in developing and marketing
competing software they have great incentives to turn to more fruitful
software innovations.14 Market and profit are the major orientation of
the developers of proprietary software and the derivative work copyright
owners.
The OSS developers have
different incentives. First, OSS allows the users to have control over
the source code so that the users may change the software to fit their
own needs. This interaction between the program owners and users gives
the users an appealing encouragement to participate in the modification
and improvement of OSS.
In addition to the altruistic
motive, the fact that every user can immediately enjoy his software update
and debugging patch file is the greatest incentive for users to participate
in the industry of OSS.15 Second, "one's work is one's statement"16 for
many OSS developers. They may merely pursue the enjoyment of programming,
and as well as the esteem in the open source community to which they belong.
Knowing that their names will appear on the list of developers of OSS,
they strive for higher levels of performance and distribution, which in
turn improves the quality of OSS.
Third, the OSS developers
may have an urge to compete with the existing proprietary software sellers.
By developing free software with fewer restrictions, the OSS developers
ultimately force their counterparts to lower their prices.
The competition between
Linux and Windows well illustrates the developing trend toward OSS. The
antitrust and anti-competitive problems caused by Microsoft's current dominance
of the industry further reinforce the perception that OSS, particularly
Linux, is a legitimate alternative to Microsoft. In February 2003, one
Advanced Server Platform of Linux vendor Red Hat became the first open
source application to receive a key U.S. government certification, the
Defense Department's Common Operating Environment (COE), clearing the way
for its use in critical government applications. This fact dispels yet
another myth about the enterprise readiness of open source software.17
Thus OSS can be seen
as inconsistent with the traditional economic mode for intellectual property
protection, and this regime of intellectual property has been outmoded
by digital technologies. Thus, interpreting intellectual property law narrow
to a balance economic incentive of the owner and the public interest would
harm the open source movement and frustrate the achievement of its goals.
B. Length of Copyright Protection
According to the economic
implications of copyright protection, copyright owners make a profit by
using the bundle of rights accompanying the ownership of the copyright,
mainly by granting licenses to reproduce, copy and making derivative work.
In order to ensure that the copyright owner gets a sufficient economic
reward before the copyrighted work enters the public domain, the Copyright
Act grants the copyright to the original author "for a term consisting
of the life of the author and seventy years after the author's death."
18 Generally, the profitable and useful life of software is much shorter
than the life of other works. For example, Windows has undertaken about
nine major iterations since its release in 1985. That is to say, one version
of Windows becomes obsolete roughly every two years. At the same time,
subsequent computer programs always need to be built on existing works,
so from the standpoint of encouraging the development of the software industry,
with regard to proprietary software, shortening the copyright term would
make sense.
OSS licensing appears special
in comparison with its counterpart. The basic implication of OSS licensing
is it "must allow modifications and derived works, and must allow them
to be distributed under the same terms as the license of the original software."19
Thus OSS licensing provides OSS users great discretion in the release of
newly added features and debugging patch files. What left for the software
kernel copyright owners is merely some nominal rights. Except for some
software companies such as Red Hat and Bluepoint, which make money from
selling the Linux advanced version and its peripheral products, most of
the OSS developers have no economic incentive consistent with the purpose
of the statutory copyright period. Moreover, because every OSS, such as
Linux, can be upgraded and debugged by every user's, generally the useful
life of OSS is longer than that of proprietary software, even of some other
kinds of copyright subject matter though the author has less economic prospects.
In light of the statutory purpose of encouraging the development of the
software industry, if copyright law will be amended to shorten its protection
term for computer programs, OSS should be treated as an exception. Copyright
law should give special protection consideration to OSS authors as an encouragement
for their contribution to the software industry.
C. OSS Copyright Infringement
OSS and proprietary
software have different modes of development, which should influence the
methods of protecting their copyrights.
1. OSS Model of Development
The traditional
process of software development occurs under a centralized leadership with
a hierarchical model. Every project leader plays an important role in a
certain step of the software development and is responsible for a specific
part of the work. Subsequently the pieces of works of the project leaders
will be centralized by other software engineers and organized into a certain
program. In the debugging process, some project leaders have the task of
handling the logistics of incoming bug reports and bug fixing patch files
from users, selecting among them and implementing certain reports, then
offering choices of solutions to users. In this highly planned, hierarchical
approach of software development, finding and fixing bugs is a long and
arduous process, taking "months of scrutiny by a dedicated few."20
The open source process
takes advantage of its users for program development. Generally, the users
not only offer feedback regarding flaws or shortcomings in the program,
but also are major sources and potential programmers of solutions to these
bugs. OSS has completely different development process comparing with that
of proprietary software. In its initial stage, OSS begins with the desire
of a developer to meet some currently unfulfilled or inadequately fulfilled
need. The developer then writes the program and puts it on the Internet
to be peer-reviewed by various open source communities. Under this decentralized
developing model, users of OSS are encouraged to contribute not only their
identifications of bugs, but also their potential solutions.
OSS development model has
some advantages. First, bugs are easier to find and fix within a shorter
release interval than proprietary software. Second, because the consensus
of a large number of developers is more reliable than one or two software
engineers' opinion, also because debuggers are not always required to conduct
significant coordination and communication, therefore the communication
and management costs occurred in the centralized model can be minimized
in the context of OSS development. Although this cost minimization can
be obtained in the hierarchical mode if the hierarchy is properly structured
to allow shorter release intervals and to collect bug reports frequently
from the Internet so that the bugs can be corrected in a minimum time,
21 the correctness and security level of OSS debugging patch file is always
higher. As a conclusion, the more people participating and distributing
into a software development, the more efficient and cost saving of the
progress update. OSS fits this requirement better than its counterpart.
2. OSS Model of Monitoring
and Control
Another copyright
related topic lies on that the monitoring and control model of OSS is different
from that of proprietary software. The power of government to regulate
and limit the rights to software depends partly on the ownership of the
software's code.22 Therefore to some extent whether government can regulate
code depends upon who controls the code. When the software is a closed
code one, ownership is held by an individual or for-profit organization
which is easy to be traced, government power is assured. But OSS makes
transparent any control that the code might carry so the code always falls
outside of the control of any particular person or company. Therefore the
government's power in recognizing copyright owner and imposing relevant
regulation or affording protection on the owner is limited in the case
of OSS.
The government's
monitoring and control power is of critical significance in the software
industry. If software is built under a closed code, the ability of a user
to change its code is much more limited than when it is open code. Generally
the harder it is for the users to change the code, the easier for the government
to set up some standard and enforce the standard on that code. So when
an industry standard or government control is imposed on both open source
and closed source software, it is more likely that the regulation will
be followed by the latter. This gives developers an escape way when they
do not like the government monitoring and control: they can easily avoid
the regulation by choosing to use open code software.23
3. Copyright Infringement
Suits
The lack of regulability
of OSS raises some other problems regarding its copyright protection. If
a programmer writes his own software based upon an existing copyrighted
OSS, undoubtedly this is a derivative work subject to the terms of OSS
distribution and reproduction restrictions of OSS licensing.
The first problem is, when
a programmer's distribution is believed infringes copyright of OSS, who
is eligible to bring a suit? Under the 1976 Copyright Act, only the exclusive
legal or beneficial copyright owner may sue for infringement. The legal
owner is the person who holds the copyright, and the beneficial owners
are those who have parted with legal title to the copyright in exchange
for percentage royalties based on sales or license fees.24 In an early
leading case Bertolino v. Italian Line25, the court held that in a suit
under the copyright laws, it is axiomatic that only the proprietor (legal
or beneficial owner) of the copyright has standing to sue for copyright
infringement. But as it mentioned above, one important feature of OSS licensing
is that it must be distributed solely under a non-exclusive license. This
clause, for one hand, restricts the number of eligible plaintiffs who have
standing to sue for copyright infringement. In determining whether someone
has standing, a critical question is whether the plaintiff is really the
programmer or owner of part of the copyrightable work. Set aside the non-exclusive
license requirement, relevant evidence of ownership is also hard to collect.
Assuming that in a Linux Internet community, every member in it holds a
non-exclusive license, the Linux kernel is a collective patchwork of copyrights,
a combined effort of multiple individuals26 so who holds ownership is uncertain
in the Internet open source community. When one of the members in the community
claims copyright ownership of an improvement or patch file, the court will
have a potential problem of facing multiple suits although the number of
exclusive copyright owners is far less than that of the factual plaintiffs.
The second problem is another
procedural one. OSS development is largely related to the Internet, which
has erased discrimination, restriction and also, certainty of the identity
of users. Consequently apportioning damages among those who allege OSS
copyright infringement is difficult. Under the government standard, it
is easy to determine whether one's contribution to proprietary software
is sufficient to constitute a derivative work copyright because the developers
must comply with a series of requirements which are set ahead of time.
But for OSS, there is no effective control on the copyrightability of every
patch before a developer releases it. Two possible ways are only protecting
the plaintiff disregard of the other contributors and alternatively splitting
damage evenly, but both of them are unfair to each side. Moreover, when
one alleges copyright infringement for a certain patch of program, not
every potential programmer may have chance to be given timely notice to
participate in the suit due to the uncertainty feature of the Internet,
undoubtedly the damages awarded are subject to great decrease.
D. OSS Licensing Problems
Setting aside the
inherent inconsistency in the copyright protection of OSS, one unique aspect
of OSS is its non-exclusive licensing. Generally, when the owner of a work
"decides to transfer to one or more people the use and enjoyment of part
or all of his bundle of legal rights, yet wishes to retain ownership of
these rights", he uses a license. The license "defines the nature and extent
of [the granted] permission". Both the original owner and a licensee may
have the right to grant a license.27
1. OSS Licensing
Proprietary software
licensing usually imposes many restrictions on the licensee. A typical
license requires the software to execute only format and limits the number
of installations allowed per copy of software. Moreover, developers or
developing organizations rarely make the source code available. If they
do release the source code for some limited purpose, an extra charge is
needed to maintain their market share and ensure maximum return.28 In contrast,
as mentioned above, OSS licensing gives more discretion to the users. OSS
licensing criteria prohibit the code from being used in proprietary or
commercial software for profit; require the authors of every version of
OSS to be recognized and kept their names integrity on the list; and require
the future improvements or modifications to be distributed under the same
terms of the OSS licensing, and so forth.
Here are some examples
of some widely used types of OSS licensing existing on the Internet, which
have different licensing terms and restrictions:
Type
Name
Terms
GPL
The GNU General Public License
Allows users to copy and
modify and distribute source code. Users must pass on, unimpaired, to other
users the licensing rights with all derivative versions of the code.
BSD
The Berkeley Software Distribution
License
Resembles GPL but does not
require that any modifications or enhancements of the original code be
contributed back to the open source community.
Aladdin
The Aladdin License
Resembles GPL but provides
additional restrictions.
MPL & NPL
The Mozilla Public License
and the Netscape Public License
A balance between BSD and
GPL. Developers should return their modifications to the open source community
but the owner retain specific rights that allow developers to continue
proprietary development of other packages and maintain existing contracts
with third parties.
SCSL
Sun's Community Source License
Sun requires and enforces
compatibility among released versions of the software, and allows proprietary
modifications and extensions to the software.
2. Incompatibility of OSS
Licenses
As shown in the chart
above, the diverse level of Internet development leads to the existence
of several types of OSS licenses in the open source communities. "The propagation
of many different and incompatible licenses works to the detriment of OSS
because fragments of one program cannot be used in another program with
an incompatible license."29 These inconsistent OSS licenses pose many problems.
Technically, the incompatibility
may lead to a number of patches or packages for one OSS in order to make
it compatible with some other types of license or running environment,
which results a potential ineffective and time-consuming work. A further
technical problem is the OSS developers are more unlikely than those of
proprietary software to take advantage of the experience learned in the
prior open source programs because of the inconsistency among different
licenses. Legally, the developers of OSS could be deterred by potential
copyright infringement suits. For example, their retention of enhancement
of OSS as derivative works may be allowed by BSD, but such retention infringes
the copyright of original OSS developers under the terms of GPL. For this
reason the uncertainty of copyright infringement from the standpoint of
derivative software owner is a huge encumbrance of OSS communication in
the Internet. So a good OSS license should devote to ensure minimal conflict
among the existing software licenses and avoid the chaos in the OSS licensing.
3. Contract Warranty of
OSS Licensing
Other than OSS licensing
inconsistency, there is another problem exists in the terms of OSS license.
The license fundamentally plays the role as an agreement between the original
developers and users. Comparing the GPL terms of Linux with license terms
of Microsoft Windows, we can find out that the greatest difference between
them is their warranty clause. Microsoft warrants the software on condition
that the software will "perform substantially in accordance with the accompanying
written materials for a period of ninety days..."30. Microsoft allows use
of Windows product on only one computer at one time and disallows reverse
engineering and disassembly to remove any component part. So beyond the
warranty clause, there is no other discretion warrant. Linux GPL is "without
warranty of any kind" for any amount of time31.
The main reason that OSS
vendors tend not to provide warranties for their products is that no single
person or group as a member in the Internet open source community can be
responsible for the defects in OSS. This is also due to the lack of government
and centralized control as discussed above. Such difference in the licensing
terms has both positive and negative aspects: for one hand, OSS users have
to burden the risk of potential bugs and security problems that always
happen in software development. On the other hand, OSS users at least have
the privilege of modifying the source code when certain bug arises during
their use of software.
In summary, the problems
existing in the copyright protection of OSS are multifaceted, but the focus
is the conflicting between traditional copyright law protection and the
unique requirement of OSS and the incompatibility within various types
of OSS licenses existing in the Internet.
III. Solutions to the Problems
in OSS
Related to the above
analysis, there are several alternative ways to resolve the copyright protection
problems existing in the OSS industry. Generally, some important ways are
agreement, Internet open source community standard and copyright regulation.
A. Licensing Agreement Terms
1. Contract Warranty and
Enforceability
Mutual agreement
between the OSS original developers and users is the most direct way to
resolve the warranty problem inherent in OSS development. This can be seen
as the result of free negotiation and better off through the software market.
More and more Internet and OSS users are used to the fact that there is
no warranty thus no single person can be responsible for OSS. But the facts
that even proprietary software license sometimes bears no warranty in the
terms and open source development is more interactive and transparent between
the developers and users than the case of proprietary software make users
choose OSS though it has no warranty. Because they are compensated by more
security and frequent updated patch files.
In addition, the
OSS licensing provisions lead to a license enforceability problem. Even
though the OSS license is binding between the parties, it still is not
as enforceable as that of proprietary software. The Copyright Act grants
derivative work authors copyright on the newly added part to preexisting
works, so relevant use beyond this scope constitutes copyright misuse.
But OSS license, such as GPL for Linux, requires that OSS provision extend
to independent work that does not totally come from the open source code,
consequently the independent work should be licensed back to the licensor.
This provision makes the derivative software authors easy to conduct copyright
misuse and infringe the copyright of the licensor. But because such provision
is inconsistent with the requirements in Copyright Act, the licensor should
recognize the potential danger that his license clause is lack of copyright
enforceability and he has to face the risk that the relevant provisions
in the OSS license may be unenforceable.
Even though assuming
all the clauses in OSS license are enforceable, such license still cannot
fully prevent certain modifications from being taken as private. Many types
of OSS licenses such as GPL and BSD permit modifications provided certain
conditions are met. But the premise is that the derivative codes and the
original codes should be distributed under notice of the same license.
If the code is modified under a different license, "then the right to create
modifications is lost or never arose due to the failure of the condition.
In other words, for any work you distribute, the right to modify is only
valid if you distribute the work under the GPL."32 So no matter the license
of the original OSS code is enforceable or not, the coexistence of a variety
of licenses makes licensors burden the risk of insufficient copyright protection
all along.
2. Resolution-Independent
Internet Entity
Beyond the contractual relationship
between developers and users, market provides almost no further solution
to guaranty OSS quality in contractual concerns. There are some alternative
ways to resolve this problem in the market. The most persuasive one is
forming a separate, non-profit entity in the Internet to verify application
compatibility. One role of the entity is offering independent verification,
and it also can test new OSS products on criteria based on their compatibility
with other products, platforms or devices. Another role of the entity is
operating on the user end as a report and information collecting center
of the bugs related to software compatibility and enforceability standard.
To ensure the impartial standard and independence of the entity, the Internet
provides a best anonymous space in the current world.
B. Legislative Regulation
Imposing governmental
authority on regulating OSS Internet community and copyright licensing
is another possible way. With legal regulation, the whole OSS development
may goes more orderly with more certainty. Comparing with the law for financing
and contract of sale of goods, which is compiled in Uniform Commercial
Code, the various licenses concerning the right to transfer OSS are far
less settled so it is hard to put OSS license into any existing legal doctrine.
For example, if we apply fair use doctrine to OSS, a lot of problems may
arise from this application because fair use is a very vague doctrine which
authorizes certain socially beneficial uses of copyrighted material that
would otherwise constitute an infringement. Whether a certain conduct is
fair use should be determined case by case upon four statutory criteria.33
When a infringer wants to apply fair use doctrine to his modification or
reproduction of the original open code to assert his conduct is protected
by the copyright law, as analyzed above, the problem of inconsistency between
OSS license provision and copyright law becomes a tough issue to resolve.
The most straightforward
way to change the situation is that, government can consider setting up
a set of direct regulation concerning distribution, monitoring and norms
of OSS. The feasibility can be inferred from the nature of OSS. It should
be very difficult for government to access the source code of proprietary
software and it also is not necessary to intervene its industry standard.
But tracing every modification during the life of OSS is more feasible
due to its transparency nature. Governmental organization can always freely
access Linux in the Internet and recognize exactly how OSS is modified
every time so that the necessary evidence is sufficient for legislators
to set up certain norms particularly in regulating one kind of OSS such
as Linux. Once the standard is set up, its enforceability depends on the
mutual effort of every user and Internet community.
Another theory supporting
the feasibility of such regulation is public choice theory, which holds
that broad, diffuse groups, like OSS developers and Internet open source
communities are less likely to be effective in achieving a certain goal
than a centralized interest group, like proprietary software developers.34
Based upon the existing huge user and developer basis of OSS development,
if OSS are directed and protected by legal certainty, the future improvement
will be more efficient and cost saving.
IV. Conclusion-the Future
Development of OSS
Cyberspace provides
OSS the widest improvement possibilities, the largest developer and user
basis and the fastest updating speed. The features of OSS determine that
OSS has much more advantages and developing space than proprietary software.
The trend that OSS might
step into and occupy more market of proprietary software can be seen from
some important recent events. One of them is that from the year 2002, Microsoft
has opened its Windows source code to systems integrators in a move to
appease both large customers and a federal judge. This is a move that analysts
say is more symbolic than material. Microsoft allows customers and partners
to view the source code without changing it or sharing the code with others.
The goal of Windows is to provide them with more in-depth knowledge of
Windows and to let users troubleshoot problems more quickly.35 Another
impressive event is Microsoft is predicted to add its proprietary software
into Linux environment by the year 2004. Facing the threat that by 2007,
45 percent of new servers will use Linux instead of Windows-based applications,
Microsoft would change its pricing structure to become more competitive
with Linux, including repricing Windows or separating the operating system
into a "kernel" with "add-on" components.36
If some more appropriate
vehicles of protection such as copyright provision and Internet independent
entity standard can be applied on OSS, it will become a better encouragement
of OSS development through the Internet open source communities. Consequently,
the competition between OSS and proprietary software will ultimately benefit
the public software users and improve the software industry.
Glossary
Apache: Apache began as
an effort to address problems that were perceived in the NCSA http web
server. The Apache has been the most popular web server since April, 1996
and today is more widely used than all other web servers combined. The
advantages of Apache include the fact that it is free (as in costless),
that it is free (as in open source), and that it provides high quality
performance.
BIND: The Berkeley
Internet Name Domain package (BIND) is the software that provides domain
name service (DNS) for the vast majority of name serving machines on the
Internet. BIND was originally developed at Berkeley under a grant from
the Defense Advanced Research Projects Agency (DARPA). However, the development
and maintenance of BIND has been taken over by the Internet Software Consortium
(ISC).
Debug: To make (a hidden
microphone, for example) ineffective; to locate and correct errors in a
computer program code-"debug this program".
Digital Alpha: Alpha is
both a microprocessor and the name of a computer system from the Digital
Equipment Corporation (DEC), which is now part of Compaq. The Alpha processor
uses a newer and more advanced architecture than DEC's flagship computer
line, the VAX. The Alpha is based on reduced instruction set computer (reduced
instruction set computing) architecture and handles 64 bits at a time.
Motorola 68k:
Mozilla: Mozilla is
the open source version of Netscape's Communicator. On January 23, 1998,
Netscape announced that, in addition to giving away its Communicator product,
its previously closed source Communicator software was going to become
open source. Not long after the source code was made available, a group
of developers added 128-bit encryption capabilities, releasing a "Cryptozilla"
product. Netscape's official Communicator version 5.0 incorporated modifications
suggested by open source contributors.
Perl: Perl is a programming
language that has become one of the most popular languages for Web page
development, Internet services, graphical programming and many other purposes.
POSIX: Acronym for portable
operating system interface for computer environments. A Federal Information
Processing Standard Publication (FIPS PUB 151-1) for a vendor-independent
interface between an operating system and an application program, including
operating system interfaces and source code functions.
Sendmail: Sendmail is a
utility that routes about 80% of the e-mail on the Internet.
Unix: A popular multi-user,
multitasking operating system developed at Bell Labs in the early 1970s.
Created by just a handful of programmers, UNIX was designed to be a small,
flexible system used exclusively by programmers. It was one of the first
operating systems to be written in a high-level programming language, namely
C.
x86: x86 is a generic name
for the series of Intel microprocessor families that began with the 80286
microprocessor. This series has been the provider of computing for personal
computers since the 80286 was introduced in 1982. x86 microprocessors include
the 386DX/SX/SL family, the 486DX/SX//DX2/SL/DX4 family, and the Pentium
3 family.
1 See Open Source Software
/ Free Software (OSS/FS) References, http://www.dwheeler.com/oss_fs_refs.html
2 See The Open Source Definition,
http://www.opensource.org/docs/definition_plain.html
3 See Motorola 68K Instruction
Definitions, http://debuffer.sourceforge.net/table68k.html
4 See Miguel Torrealba,
What is Linux? http://www.linuxfocus.org/English/November1997/article1.html
5 See About Linux Kernel,
http://sources.redhat.com/ml/bug-gdb/2000-07/msg00006.html
6 See Marcus Maher, Open
Source Software: the Success of an Alternative Intellectual Property Incentive
Paradigm, 10 Fordham Intell. Prop. Media & Ent. L.J. 619, 623 (2000).
7 17 U.S.C. §§101-1332,
1994 & Supp. IV 1998.
8 Robert P. Mergeset AL.,
Intellectual Property in the New Technological Age, 323 (1997).
9 See Pub. L. No. 96-517
§10(a), 94 Stat. 3028 (1980) (amending §101 of the Copyright
Act).
10 U.S. Const. art. I, §8,
cl. 8
11 17 U.S.C. §106,
1994 & Supp. IV 1998
12 A. Michael Warnecke,
The Art of Applying the Fair Use Doctrine: the Post-Modern Art Challenge
the Copyright Law, 13 Rev. Litig. 685, 695-696 (1994).
13 On the application of
economic analysis by legal scholars to specific copyright law doctrines,
see William M. Landes & Richard A. Posner, An Economic Analysis of
Copyright Law, 18 J. Legal Stud. 325 (1989).
14 See Stephen M. McJohn,
The Paradoxes of Free Software, 9 Geo. Mason L. Rev. 25, 36 (2000).
15 See Marcus Maher, supra
note 4, at 633-634.
16 Eric S. Raymond, Homesteading
the Noosphere: The Value of Humility,
http: tuxedo.org/esr/writings/homesteading/homesteading-11.html
17 See Red Hat Gets Thumbs-Up
from U.S. Government, http://www.newsfactor.com/perl/story/20742.html
18 17 U.S.C. §§302(a),
1994 & Supp. IV 1998
19 See Bruce Perens, supra
note 4.
20 Eric S. Raymond, The
Cathedral and the Bazaar: The Importance of Having Users, http://www.tuxedo.org/esr/writings/cathedral-bazaar-3.htm.
21 See Eric, supra note
15, and see Eric S. Raymond, The Cathedral and the Bazaar: Release Early,
Release Often, http://www.tuxedo.org/esr/writings/cathedral-bazaar-4.htm.
22 See Jerome H. Saltzer
et al., End-to-End Arguments in Systems Design, in Integrated Broadband
Networks, 30 (Amit Bhargava ed., 1991).
23 See Lawrence Lessig,
The Limits in Open Code: Regulatory Standards and the Future of the Net,
14, Berkeley Tech. L.J. 759, 765-766(1999)
24 See 17 U.S.C §501,
201 (1994).
25 Bertolino v. Italian
Line, 414 F. Supp. 279, 284 (S.D.N.Y.1976)
26 Shawn W. Potter, Open
up to Open Source, 6 Rich. J.L. & Tech. 24, 68 (2000).
27 Natasha T. Horne, Open
Source Software Licensing: Using Copyright Law to Encourage Free Use, 17
Ga. St. U. L. Rev. 863, 871 (2001)
28 See Richard P. Gabriel
& William N. Joy, Sun Community Source License Principles, http://www.sun.com/981208/scsl/principles.html.
29 See Bruce Perens, The
Open Source Definition, in Open Sources: Voices from the Open Source Revolution,
185 (Chris Dibona et al. eds., 1999).
30 See Microsoft Corporation,
Microsoft End User License Agreement (EULA): Windows 98-Online, http://www.linuxmall.com/misc/refund/eula/online032698.html.
31 See GNU General Public
License, http://www.opensource.org/licenses/gpl-license.html.
32 Christian H. Nadan, Open
Source Licensing: Virus or Virtue? 10 Tex. Intell. Prop. L.J. 349, 370
(2002)
33 See 17 U.S.C. §107
(1994).
34 For a detailed analysis,
see Stephen, supra note 10, at 64-66. And see Lawrence Lessig, Open Code
and Open Society: Values of Internet Governance, 74 Chi.-Kent L. Rev. 1405,
(1999)
35 See Tiffany Kary, Microsoft
extends shared-code effort, http://news.com.com/2100-1001-841933.html.
36 See Lisa Gill, Research
Firm: Microsoft Will Use Linux by 2004, http://www.newsfactor.com/perl/story/20210.html.
Open Source Software-Open up Copyright? Ying Yu
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