Commercial Free and Open Source Software : Knowledge Production, Hybrid Appropriability, and Patents

Free and open source software (FOSS) is a movement continually gathering accolades as a non-market based system of knowledge production and distribution. This continues even while commercial influences overtake the movement, resulting in many hybrid approaches to software development and appropriating value from the resulting code. FOSS licensing harnesses the phenomena of peer-production, where distributed collaboration among scattered but organized community members results in both new software and a new development methodology. Source code availability, an enforced feature of one major type of FOSS license, enables the peer-production methodology and facilitates knowledge distribution in the form of freely available code as a learning platform. Other FOSS benefits, however, are more ambiguous, such as whether the movement inherently produces higher quality code compared to proprietary software development, or whether it allows for sufficient appropriability to economically support non-incremental advances in information technology. This article assesses these questions generally with reference to the FOSS licensing system and its two primary modes of licensing, and specifically with reference to an increasingly important appropriability mechanism for software – patent protection. One mode of FOSS licensing uses a feature called, tongue-in-cheek, copyleft, which uses copyright law to ensure that distribution of the code prevents its direct incorporation into proprietary software. The other mode of FOSS licensing is more permissive, allowing its use even in proprietary software without source code availability and even without any monetary remuneration to the originators. Both modes have differing appropriability implications apart from patent law. Patent protection complicates the FOSS licensing system, creating potential for greater nuance in appropriability as well as greater power over competitors and communities. The article concludes by illustrating these possibilities with two exemplary areas of patent law doctrine likely to be at issue in such circumstances: implied license and factors for evaluating whether an injunction should issue