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A Study of Intellectual Property and Free and Open Source Software (FOSS) Licensing Schemes from a Relational Contract Perspective

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A Study of Intellectual Property and Free and Open Source Software (FOSS) Licensing Schemes from a Relational Contract Perspective The London School of Economics and Political Science Authoring Collaborative Projects: A Study of Intellectual Property and Free and Open Source Software (FOSS) Licensing Schemes from a Relational Contract Perspective Chenwei Zhu Submitted to the London School of Economics and Political Science for the degree of Doctor of Philosophy London, October 2011 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. 2 Abstract The emergence of free and open source software (FOSS) has posed many challenges to the mainstream proprietary software production model. This dissertation endeavours to address these challenges through tackling the following legal problem: how does FOSS licensing articulate a legal language of software freedom in support of large-scale collaboration among FOSS programmers who have to face a rather hostile legal environment underlined by a dominant ideology of possessive individualism? I approach this problem from three aspects. The first aspect examines the unique historical context from which FOSS licensing has emerged. It focuses on the most prominent “copyleft” licence—GNU General Public Licence—which has been shaped by the tension between the MIT-style hacker custom and intellectual property law since the 1980s. The second aspect tackles the legal mechanism of FOSS licences, which seems not dissimilar from other non-negotiated standard-form contracts. My analysis shows that FOSS licences do not fit well with the neoclassical contract model that has dominated software licensing jurisprudence so far. I therefore call for replacing the neoclassical approach with Ian Macneil’s Relational Contract Theory, which has remained conspicuously absent in the software licensing literature. The third aspect explores FOSS programmers’ authorship as manifested in FOSS licensing. It argues that the success of a FOSS project does not merely depend on the virtuosity of individual programmers in isolation. More importantly, a core team of lead programmers’ efforts are essential to channel individual authors’ virtuosity into a coherent work of collective authorship, which can deserve credit for the project as a whole. The study of these three aspects together aims to create a synergy to show that it is possible to graft a few collaborative elements onto the existing legal system—underpinned by a neoliberal ideology assuming that human beings are selfish utility-maximising agents—through carefully crafted licensing schemes. 3 Acknowledgements I am deeply grateful to be given the opportunity to study at the LSE, where I have spent a few most memorable years focusing on a subject that I am fascinated about. I am most thankful to my lead supervisor Ms. Anne Barron who has been tremendously supportive and patient in shepherding my academic project over these years. It is under Anne’s careful guidance that I am able to channel my initial curiosity into this final doctoral work. I express my heart-felt gratitude to Professor Linda Mulcahy who helped me enormously on Relational Contract Theory, which turned out to be such a crucial component of the whole dissertation. Linda’s encouragement and kindness greatly helped me to finish this dissertation during my final year of study. I am also very thankful to Dr. Edgar Whitley who has given much support during my early years at the LSE and I have benefited considerably from his advice. A large part of this dissertation was written during my residency at the Lilian Knowles House (a student hall in East London), where I spent significant amounts of time studying and writing in its basement computer room. While there, I also made a few good friends whose presence made my many long writing sessions less lonely. My final two chapters were finished when I was lodging with two families at two different times (first with Gwenda and Dafydd’s and then Yin and Bob’s). Both families have warmly treated me like a family member and made great efforts to provide a quiet place for me to concentrate and study during the final lap of my PhD journey. I also want to thank Carol Capel-Bradford, Bal Khela, Sebastian Szuhay, David Possee and Joanna Sedillo, each of whom has spared some time to read parts of this dissertation and I certainly benefit a lot from their helpful comments and feedback. Finally, I do not know how to thank enough my parents, who have made many sacrifices for my education from my beginning stage until now. This dissertation is dedicated to them. C.W. 4 CONTENTS DECLARATION .................................................................................................................................. 2 ABSTRACT .......................................................................................................................................... 3 ACKNOWLEDGEMENTS ................................................................................................................. 4 LIST OF CASES .................................................................................................................................. 8 CHAPTER 1 OVERVIEW: PROBLEMATISING FOSS LICENSING .................................... 10 1.1 INTRODUCTION ......................................................................................................................... 10 1.1.1 Two Conflicting Traditions: Where Do FOSS Licences Come From? ........................... 11 1.1.2 Three Aspects of FOSS Licensing: Framing the Questions ........................................... 13 1.2 KEY CONCEPTS IN FOSS LICENSING ....................................................................................... 15 1.2.1 Source Code and FOSS .................................................................................................... 16 1.2.2 “Free Software” and “Open Source” .............................................................................. 17 1.2.3 FOSS Stewardship and the Hacker Ethic ........................................................................ 19 1.2.4 FOSS Licence and “Copyleft” .......................................................................................... 21 1.3 STEWARDING FOSS PROJECTS : WHAT LICENCES CAN AND CANNOT DO ............................ 24 1.3.1 Collaboration in FOSS Projects ....................................................................................... 24 1.3.2 The Role of FOSS Licensing ............................................................................................ 31 1.4 STRUCTURE OF THE DISSERTATION ......................................................................................... 40 CHAPTER 2 FROM THE HACKER ETHIC TO “OPEN SOURCE”: A BRIEF HISTORY . 42 2.1 INTRODUCTION : THREE HISTORICAL STAGES ........................................................................ 42 2.2 FROM THE 1950 S TO THE EARLY 1980 S: THE PRE -LICENSING ERA ...................................... 44 2.2.1 Beginning of the Hacker Ethic ......................................................................................... 44 2.2.2 Decline of the Hacker Ethic ............................................................................................. 50 5 2.3 FROM THE EARLY 1980 S TO 1998: CLASH BETWEEN THE TWO TRADITIONS ........................ 54 2.3.1 Changes in Market and Law ............................................................................................ 54 2.3.2 The Birth of Copyleft ........................................................................................................ 58 2.4 FROM 1998 ONWARDS : CHALLENGE FROM “O PEN SOURCE ” ................................................ 68 2.5 CONCLUSION ............................................................................................................................. 80 CHAPTER 3 INTELLECTUAL PROPERTY AND SOFTWARE FREEDOM ...................... 82 3.1 INTRODUCTION ......................................................................................................................... 82 3.2 “I NTELLECTUAL PROPERTY ” AND FOSS ................................................................................ 83 3.3 COPYRIGHT AND FOSS ............................................................................................................ 86 3.3.1 The Originality Threshold ................................................................................................ 87 3.3.2 Software as Expression and Function ............................................................................. 92 3.3.3 Scope of Exclusivity: Restricted and Permitted Acts ....................................................... 98 3.4 PATENT AND FOSS ................................................................................................................. 102 3.4.1 Patentability of Software-Related Inventions ................................................................ 103 3.4.2 Perceived Threat of Patents to Software Innovation ..................................................... 112 3.5 GPL AND SOFTWARE FREEDOM ............................................................................................ 117 3.5.1 GPL as a Copyright and “Copyleft” Licence
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