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George Mason Law Review


This paper describes the legal structure of open source software and analyzes the likely issues to arise. A combination of copyright law and trademark law serves to permit the free distribution of open source software. The software is kept under copyright, but freely licensed under one of various open source licenses. The legal structure of open source is an elegant and robust use of intellectual property law that turns the customary use of intellectual property on its head, by using intellectual property laws, which normally are used to guard exclusive rights, to safeguard free access to and use of software. The paper further discusses how open source challenges economic and philosophical theories of intellectual property. Ironically, the open source movement, with its early roots in a decidedly socialist view of software, appears to vindicate a rather free-market view of intellectual property--that market mechanisms are more efficient in overcoming market failure than corrective legal measures. Philosophically, open sources may fit best with a natural rights/personality theory, especially where open source authors frequently give away all rights except their rights to attribution and to prevent distortion. The paper further explores how open source may affect patent litigation, (especially with respect to the profound prior art problems in software patents) and other aspects of regulation of software (ranging from fair use in copyright to enforcement of licensing terms to restrictions on use of certain algorithms, like encryption). The openness of the software can cut both ways with respect to all those subjects.

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