Free and Open Source Software

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Topic Owners: dulles,Ayelet

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Precis

Free software seems to have a dual-nature: it can be at once "free as in beer" and also "free as in speech". More academically said, free software is software libre or software gratis, often both. By these words we can see how Free / Open Source Software (F/OSS) is characterized both by it's price-tag and by the philosophy (the four freedoms of software) that surrounds it. Understanding these facets of F/OSS is simple enough, but we would like to explore F/OSS by asking whether we should characterize libre and gratis as two facets of a unified F/OSS software movement, or whether F/OSS is in some unresolvable way a movement at-odds with itself. As we move along, we would like to hear from the class whether they believe the law is best tailored to a particular characterization of software or F/OSS, how flexible the law can be, and whether it can and should change to meet other characterizations of F/OSS.

There may be a case both for and against casting F/OSS as fundamentally divided. On the one hand, the libre/gratis distinction seems to relate to a sort of clash between Free Culture and Permission Culture, which might be recast as a divide between the drive of economic development and the drive of cultural development. Of course, the law still respects copyright and patents, so Free Culture is a long way from a victory. On the other hand, software libre has managed to turn the tools of copyright upon themselves with the invention of the copyleft licensing system, made so widely accessible by projects like Creative Commons. Furthermore, some companies like RedHat are even trying to turn a profit on F/OSS using a services based business model. Given all this, maybe the law of copyrights doesn't need to adjust at all in order to account for free culture?

Maybe casting the division as one between economics and culture is just a divisive technique. It does seems reasonable to think of a spectrum bookended by Free Culture and Paid Software, with F/OSS along in the middle. Alternatively, perhaps theories of gift economies can help us come to understand software libre as attempting to create a separate software economy?

We suggest to treat proprietary software - based on an intellectual property regime - as a "clash of civilizations" with f/oss, which is based on a commons-based system. that is, because these both are based on two different sets of assumption: market economy v. gift/reputation economy, hegemony v. grassroots movement.

the interesting question we could consider is, I think, about F/OSS as growing "in the shadow of the IP law" (it is a reference to a classic article about settlement arrangements as being "in the shadow of the law").

Benkler, for one, would think (I think) that IP law and IP-based systems create an infrastructure that stops F/OSS from developing. Lessig, on the other hand, if I understand correctly, as in the Creative Commons idea, thinks that the two can develop at the same time.

I think a very cool idea will be to ask them both (maybe Lessig via video-conference) to debate about the question of the enfluence of current copyright and patent law as to software as a "shadow" for the development of F/OSS. (Ayelet)



As we move along, keep in mind the following (potentially false) dichotomies:

  • Free as in Beer v. Free as in Speech
  • Copyright v. Copyleft
  • Copyleft v. Free Culture - is there a difference?
  • The Economic Drive v. The Cultural Drive
  • Profit v. Reputations
  • Insiders v. Outsiders - are there deep disconnects between the business, software, and legal worlds that make common ground hard to find?

Questions

We propose to explore the division between "free as in speech" and "free as in beer" and then use what ideas we can develop to explore the following questions:

  • To what extent does intellectual property law currently protect software libre and software gratis?
  • To what extend is the law in fundamental opposition to software libre or software gratis?
  • Should we characterize F/OSS as a movement at-odds with itself or not? In other words, is there an unbridgeable gap between software libre and software gratis?
  • Given our thoughts about the above question, how do we see the law adapting, or not, to account for F/OSS?
    • Can we imagine a world where the law recognizes a continuum bookended by Free Culture and Paid Software.
    • Alternatively, can we imagine a world where software is a predominantly gift-economy, and would the law dare extend into this world?

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