B. Open-Content Licensing: Software
The contemporary peer-production phenomenon began in the software world in the 1970s and 1980s,[1] with later open-content projects modeling themselves on the paradigm established by free and open source software (“FOSS”).[2] Software licensing, accordingly, supplies the logical starting point for an examination of the legal underpinnings of commons-based peer production. Although dozens of standard-form licenses exist for FOSS works,[3] many of them share a common intellectual ancestor: the GNU Project’s celebrated GPL.[4]
1. The GNU GPL and LGPL
In the FOSS world, the GNU GPL is the most widely used license.[5] There have been three versions of the GPL: Version 1, which was promul-
- ↑ The Unix operating system, which was developed at AT&T Corporation’s Bell Labs beginning in 1969, was widely adopted by scientific and educational institutions under quite liberal licensing terms in the 1970s. See Weber, supra note 9, at 25–29. As Unix’s popularity grew, AT&T sensed an opportunity to capitalize on rising demand, and in the late 1970s it took several steps aimed at maximizing the commercial value of Unix, including dramatically raising its licensing fees and imposing new restrictions on licensees’ authority to redistribute the operating system’s source code. See id. at 38–39, 44–46. Rising proprietization of software sparked a backlash, led at MIT by programmer Richard Stallman, who in 1983 founded the Free Software Foundation (“FSF”) and the following year launched the “GNU” (short for “GNU’s Not Unix”) Project with the goal of producing a complete operating system free from proprietary constraints. See id. at 46–48.
- ↑ The label “free and open source” is commonly used to pass over an internal squabble that exists in the nonproprietary software community, but which lacks significance for most analyses of that community’s operations and product, including the present one. In brief, partisans of “free software” see avoiding proprietary or commercial entanglements as a moral imperative, while advocates of “open source” view performance and technological superiority rather than ethics as the key issues. See Benkler, supra note 11, at 66 (noting the dispute); José J. González, Open Source, Free Software, and Contractual Issues, 15 Tex. Intell. Prop. L.J. 157, 178–85 (2007) (same); Eric S. Raymond, Homesteading the Noosphere, in The Cathedral and the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary, supra note 9, at 79, 83–84 (emphasizing “pragmatism” of “open source” advocates); Richard M. Stallman, Why “Free Software” is Better than “Open Source”, in Free Software, Free Society: Selected Essays of Richard M. Stallman 55–60 (Joshua Gay ed., 2002) (advocating moral superiority of “free software”); Vetter, supra note 10, at 298 (summarizing the debate).
- ↑ “The Open Source initiative has, to date, approved 73 licenses” as compatible with the project’s Open Source Definition. Perens, supra note 31; see also Open Source Initiative (“OSI”), Open Source Definition (Annotated), http://www.opensource.org/docs/definition.php (last visited Apr. 1, 2010). The FSF maintains its own, smaller, list of licenses that satisfy its definition of “free software.” See FSF, Various Licenses and Comments About Them (2008), available at list.html http://www.gnu.org/licenses/license list.html.
- ↑ See Benkler, supra note 11, at 65 (describing GPL as “a legal technique that started a snowball rolling”); Lawrence Lessig, Code: Version 2.0, at 147–48 (2006) (linking dynamism of Linux development process to openness of source code guaranteed by the GPL); Weber, supra note 9, at 49 (“[T]he GPL was a major innovation . . . [that] established a clear social regime with specific principles and norms that defined free software.”).
- ↑ As of March 2010, the SourceForge online software repository indexed over 105,000 open-source software projects available under any version of the GPL. See SourceForge.net,
