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"Legal Implications of Open-Source Software"
University of Illinois Law Review, Forthcoming
BY: DAVID MCGOWAN
University of Minnesota Law School
Contact: DAVID MCGOWAN
Email: Mailto:dmcgowan@tc.umn.edu
Postal: University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN 55455 USA
ABSTRACT:
This article examines some legal and economic aspects of
software produced under licenses that provide for distribution
of source code and allow downstream users to copy, modify, and
redistribute code. The article focuses in particular on the
General Public License (GPL), which grants permission to engage
in such activities on the condition that downstream users make
their own works available on the same terms on which they
received the code. Production under this model is informal
compared to production in conventional firms. Persons who work
on projects utilizing these licenses do not receive wages from
those who initiate or maintain the projects. This model
therefore poses questions about traditional assumptions of agent
behavior that characterize the Theory of the Firm literature.
This article first analyzes the agency question and contends
that classifying software by license terms provides an
incomplete understanding of this form of production. The social
structures necessary to sustain production vary depending upon
the complexity, and therefore cost, of different projects; the
market position of different projects is relevant as well.
Production of simple, low-cost projects may require little if
any coordination and therefore little if any hierarchy.
Production of complex projects, such as the GNU/Linux operating
system, require coordination and are in fact characterized by
hierarchy. The article discusses the social factors that have
thus far supported these hierarchies. The article also analyzes
the reciprocal licensing model of the GPL, and discusses various
issues relevant to its enforceability under existing copyright
and contract law.
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