modification.[1] Again, the LGPL stands in between, excusing compliance with the GPL’s copyleft condition in some circumstances.
Comparing the licenses’ effects along these two dimensions illuminates the underlying bias of contemporary copyright law in favor of proprietary production. Creating a commons of freely reusable works can be accomplished only with licenses that constrain the commons-defeating features of current law. The default positions of copyright law tend to reflect assumptions that emphasize individual production under a strongly proprietary regime.[2] Those proprietary defaults have only strengthened over time.[3] FOSS licenses inevitably reflect that underlying copyright regime even as they work to construct an alternative. The GPL, for example, aims to make FOSS works freely reusable by restricting behaviors (such as releasing software in binary-only form or incorporating it into proprietary products) that, although not forbidden by copyright law, inhibit the growth of the commons. The GPL backs its commons-creating mandates with the threat of liability for copyright infringement if they are breached,[4] thereby cleverly inverting the proprietary architecture of copyright to preserve a domain free from proprietary control.[5] BSD-style licenses, in contrast, impose fewer constraints on
- ↑ In Professor Moglen’s words:
The GPL says: We construct a protected commons, in which by a trick, an irony, the phenomena of commons are adduced through the phenomena of copyright, restricted ownership is employed to create non-restricted self-protected commons . . . . It says: “Take this software; do what you want with it—copy, modify, redistribute. But if you distribute, modified or unmodified, do not attempt to give anybody to whom you distribute fewer rights than you had in the material with which you began. Have a nice day!”
Moglen, supra note 94, at 6. For a discussion of a few (largely inconclusive) cases in which the plaintiff relied on violation of the GPL as support for its claim of copyright infringement, see Clark D. Asay, The General Public License Version 3.0: Making or Breaking the FOSS Movement?, 14 Mich. Telecomm. & Tech. L. Rev. 265, 285 & nn.86–87 (2008); Joseph B. Baker, Note, Contracting to Supplement Fair Use Doctrine, 39 U. Mem. L . Rev. 757, 788–89 (2009); Brad Frazer, Open Source is Not Public Domain: Evolving Licensing Philosophies, 45 Idaho L. Rev. 349, 372–73 (2009); Vetter, supra note 10, at 299–300 & n.66; Jason B. Wacha, Taking the Case: Is the GPL Enforceable?, 21 Santa Clara Computer & High Tech. L.J. 451, 470 (2005).
- ↑ See infra Part III.A.1 (discussing evolution of copyright default rules—that is to say, the rules that apply absent agreement by the affected parties). For an argument that some of copyright’s default rules are not subject to alteration by private agreement, see Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111, 141–42 (1999) (citing the statute’s provision on termination of transfers as an example of an unalterable default rule).
- ↑ See Benkler, supra note 11, at 439–44 (noting both legislative and judge-made expansions of property rights in copyrighted works); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 130–39 (2004).
- ↑ See supra note 61 and accompanying text.
- ↑ See Benkler, supra note 11, at 65 (“the legal jujitsu Stallman used [in the GPL]—asserting his own copyright claims, but only to force all downstream users who wanted to rely on his contributions to make their own contributions available to everyone else—came to be known as ‘copyleft,’ an ironic twist on copyright”); Weber, supra note 9, at 85; Gomulkiewicz, supra note 76, at 83–84; Moglen, supra note 94, at 6. As others have noted, the
