OPPORTUNISTIC FREE AND OPEN SOURCE SOFTWARE DEVELOPMENT PATHWAYS.

• Author: Vetter, Greg R.
• Position: Symposium: Intellectual Property and the New Private Law

TABLE OF CONTENTS I. INTRODUCTION 167 II. FREE AND OPEN SOURCE SOFTWARE ("FOSS") LICENSING APPROACHES 172 A. The Permissive License Approach 173 B. The Copyleft Approach 173 C. Forking a Software Development Pathway 175 III. FOSS LICENSES AND THE MODULARITY FRAMEWORK FOR INTELLECTUAL PROPERTY 176 A. License Interaction, Opportunism, and the Modularity framework 176 B. Pathways of Approach and Impeding Opportunism 179 IV. FLEXIBLE SOFTWARE PATHWAYS 182 A. Fiscal Benefit Potential Under the Permissive License Approach 183 B. Contributor Recruitment Under the GPL Approach 183 V. AGGREGATION SOFTWARE PATHWAYS 185 A. Software Aggregations and Hybrid Approaches 185 B. FOSS and Source Code in the Cloud 186 VI. CONCLUSION 187 I. INTRODUCTION

Every software license limits opportunism in some sense. This holds for proprietary licenses as well as for licenses this Article will call "free and open source software" ("FOSS") licenses. The license terms reflect the opportunism to be prevented. Sometimes the terms amplify the rights the license deploys. Thus, a proprietary software license prohibits copying even though the software is covered by copyright's reproduction right. (1)

Sometimes the terms of a software license invert its rights-base. For example, a FOSS license allows copying and distribution for any type of use, but requires attribution to the originator. The opportunism impeded is taking credit for the work of another. (2) Copyright's orientation is prohibiting unauthorized reproductions, but the FOSS license allows copying in furtherance of a goal: impeding some variety of opportunism in software development and information technology. FOSS licenses reflect the dissatisfaction some communities express with intellectual property protection in software. To these communities, a better alternative is no property rights in software, but failing that, software under FOSS licenses is preferable to software under proprietary licenses.

Given that some licenses work against intellectual property in software, conflicting opportunism-impedance strategies among different licenses (3) reflect tension about property rights in software. This Article's claim is that Henry Smith's modularity framework for intellectual property rights (4) gives greater insight into this tension. Inhibiting opportunism with use of a resource is part of modularity, so this Article uses a definition of opportunism inspired from Smith's work with platforms and equity: opportunism is undesirable behavior, in part because the actions are contrary to the purpose of the property rights; (5) it "is residual behavior that would be contracted away if ex ante transaction costs were lower." (6) Even with this definition, opportunism is a difficult concept to cabin. It is relative, relational, and depends on past positions among parties.

Licenses are not the same as intellectual property rights in software. Licenses shape what users may do with the software. ubiquitous licenses can transcend the public/private divide to attain a quasi-public character. (7) Thus, license rights may be more important for users than the underlying intellectual property rights. (8)

Smith's modularity framework is based on information costs shaping the scope of opportunism-impeding intellectual property rights, and is an extension of his information costs approach to real property rights. (9) In a real property context, ex ante, trespass law allows the owner to engage in a variety of uses according to her valuation of those uses or other preferences. The power to exclude associated with the trespass rule gives the owner an incentive to develop information about possible uses and associated values and costs. (10) The right to exclude is the informational signal that acts as a boundary between the modules. One module of human activity is the owner(s) and what they do with the land. The module on the other side of the interface is all possible trespassers. Another modularity example in real property is the law of waste acting as an interface between the module of future interest owners as compared to the module of life estate owners. (11)

To explain modularity generally, this Article transforms real property examples into a spatial metaphor: modularity seeks to locate the property rights interface so that it clusters most human interactions around a resource on either side of a boundary made by the rights. The shape and character of the rights define the modules of interactions partitioned by the rights interface. (12) The trick is to find the sweet spot for the interface such that the interface costs (13) are less than the benefits of diminished opportunism with the recourse covered by the rights. This spot is where most interactions with the resource occur within a module on either side of the interface. The interactions within each module do not have the opportunism opposed by the interface.

This Article posits that it is difficult for software to achieve a stable modularity interface to impede opportunism. (14) In other words, it is difficult, compared to other types of information resources, to prevent strategic behavior both ex ante and ex post. This is due to the multimodal complexity of software development, the overlapping rights-bases applicable to software, and the licenses that underlie distribution and use of software. (15) In particular, this Article's focus is the contrast and incompatibility among FOSS license types against the background of the proprietary software license. (16) I use the term "pathways" to describe software that is relicensed over time as different developer groups work with the software: sometimes a relicensing attempt will succeed because the earlier license is compatible with the terms of the later license; sometimes the relicensing attempt produces incompatibility, rendering the later license ineffective.

Success for a FOSS license includes use of the software it covers, or its application to more software, or both. While there are many FOSS licenses, a taxonomy of two general types is important. First, permissive licenses allow any downstream use or relicensing of the software, including into proprietary licensed software, so long as certain attributions are given.

The second type is what this Article calls copyleft licenses. Emblematic of copyleft licenses is the General Public License ("GPL"). (17) Copyleft licenses demand greater continuance of the terms of the license, which typically includes that the software's source code remain non-secret and that free distribution not be encumbered (by, for example, ongoing royalty payment obligations for distribution recipients). (18) Generally, copyleft licenses have greater complexity and potential effect on the technological future for software covered by the license. The development pathway of the software--the manner in which software can be developed--depends on the FOSS license initially selected.

Success for a FOSS license also includes impeding some variety of opportunism. License terms indicate behavior deemed strategic in ways incompatible with a desired production modality for the software. (19) The choice of license for a FOSS project, and the potential influence of the original license on the software development process both shape the opportunism impeding possibilities.

From a modularity perspective, where opportunism dampening helps situate a rights interface between modules of interactions around the resource, the pros and cons of license-pathway potentials influence the calculus in selecting a FOSS license. Choosing a license is tantamount to locating the interface, or relocating it in relation to the rights-base.

Additionally, license complexity may increase interface costs such that future pathways for use of the technology are constrained or require transaction costs to obtain. In such a situation, the foregone uses might represent opportunism dampening that does not overcome the cost of the license-rights-interface or the lost opportunity of the foregone uses, despite the other uses allowed by the license. (20)

To demonstrate these principles with typical FOSS licenses, part ii provides a brief overview of permissive versus copyleft FOSS licenses. Next, Part III models the rights-base of copyright within the modularity framework, overlaying software licenses. The insight is that the use of software under different licenses, over time, might create pathway incompatibilities. These incompatibilities suggest that a stable interface for the modularity framework is more difficult to achieve for software compared to other types of information resources covered by intellectual property rights. Then, Parts IV and V, respectively, discuss these principles from the perspective of two software scenarios. Finally, Part VI concludes.

2. FREE AND OPEN SOURCE SOFTWARE ("FOSS") LICENSING APPROACHES

   The hallmark of FOSS development is available source code. In contrast, the proprietary method of licensing software keeps the source code as a trade secret and licenses the executable software. But while FOSS generally is associated with available source code, one of the two general FOSS license types, the permissive license, does not, within the license, require available source code. The second approach, the copyleft license, conditions activity with the software on the source code remaining published and available.

   A characteristic feature of software development is the interacting nature of software. Code layers on other code, entangled by lesser or greater degrees of mixing and interfacing. (21) The reach of copyright in code, particularly with respect to the derivative work right, extends the licensing possibilities. Comingled source code from different FOSS licenses might not be compatible in a legal sense even if the software will interwork. (22) License compatibility significantly affects the productive uses possible for FOSS code. (23)

   1. The Permissive License Approach

      The...