Bibliography of Legal Writings on the GPL

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PLANETARY MOTION, INC. v. TECHSPLOSION, INC., 261 F.3d 1188 (11th Cir. 2001) (“Software distributed pursuant to [the GNU General Public License] is not necessarily ceded to the public domain and the licensor purports to retain ownership rights, which may or may not include rights to a mark”).


Patrick K. Bobko, LINUX AND GENERAL PUBLIC LICENSES: CAN COPYRIGHT KEEP “OPEN SOURCE” SOFTWARE FREE?, 28 AIPLA Q.J. 81 (2000) (“Using Linux as the subject of analysis, this article discusses the enforceability of the licenses that protect non-proprietary software and keep it "open-source." The analysis involves two primary issues: whether the improvements made to Linux are derivative works or are themselves copyrightable, and whether the GPL is an enforceable non-exclusive license.”).

Patrick K. Bobko, OPEN-SOURCE SOFTWARE AND THE DEMISE OF COPYRIGHT, 1 Rutgers Computer & Tech. L.J. 51 (2001) (“With the emergence of open-source software ("OSS"), some of the debate over copyright protection has taken a new focus. Although OSS depends upon copyright protection for its continued existence, the economic incentives of OSS are not the traditional economic incentives assumed by copyright law because they do not arise out of a monopoly of the copyrighted material. As a result, copyright law plays a diminished role in OSS. Part I of this article examines the economic foundation of the commercial software industry and its reliance upon copyright law, highlighting the current debate concerning the appropriate level of software protection for a program's non-literal elements. Part II examines OSS and its impact on the information industries with particular emphasis on its freedom from market pressures and technical superiority over its proprietary counterparts. This article concludes that although some copyright protection is required to perpetuate the open- source movement, OSS' emergence has substantially mooted the current debate over the appropriate level of protection for a program's non-literal elements.”).

Robert W. Gomulkiewicz, HOW COPYLEFT USES LICENSE RIGHTS TO SUCCEED IN THE OPEN SOURCE SOFTWARE REVOLUTION AND THE IMPLICATIONS FOR ARTICLE 2B, 36 Hous. L. Rev. 179 (1999) (“This Article examines the origins and continuing momentum of the open source revolution. It then discusses the principles of open source licensing and why licensing is central to the open source revolution. The Article concludes by discussing the implications that copyleft licensing principles have for proposed Article 2B of the Uniform Commercial Code ("UCC"), a provision that would govern software licenses. The Article points out that in order to foster innovative developments such as the open source revolution, Article 2B needs to, among other things, validate the enforceability of standard-form mass-market licenses, preserve the ability of software developers to freely allocate risk, and provide sensible contract default rules.”).

Teresa Hill, NOTE: FRAGMENTING THE COPYLEFT MOVEMENT: THE PUBLIC WILL NOT PREVAIL, 1999 Utah L. Rev. 797 (1999) (“This Note analyzes the copyleft movement from the traditional sociological perspectives of social movement theory. Specifically, this Note investigates whether the copyleft movement will effectuate any change in intellectual property considering the fragmentation of the movement by emerging market changes. In Part II, this Note examines the historical development of copyright and its application to computer software, specifically focusing on courts' inconsistent application of copyright law to new technology. Part III next examines what the copyleft movement is, how the copyleft movement developed, and how the general criticisms of traditional notions of copyright as applied to computer software are incorporated into the copyleft movement. Part IV analyzes the copyleft movement and its fragmentation, arguing that to the public's detriment, copyleft will not be the force that drives the nail in the coffin of copyright. In conclusion, this Note argues that the fragmentation of the copyleft movement will ultimately render it unable to affect radical legal changes in intellectual property.”).

Natasha T. Horne, OPEN SOURCE SOFTWARE LICENSING: USING COPYRIGHT LAW TO ENCOURAGE FREE USE, 17 Ga. St. U. L. Rev. 863 (2001) (“Part I of this Note reviews the history and philosophies of the open source movement. Part II discusses the roles copyright and software licensing play in open source software development. Part III examines the licensing terms of several popular open source licenses used today. Part IV provides a few pointers for selecting a license. Finally, Part V suggests that the open source movement may be disproving the need for financial incentives under copyright law.”).

Nigel Howard, Dan Ravicher, Ken Johnson, HOW TO USE PATENT LAW TO THE ADVANTAGE OF OPEN-SOURCE SOFTWARE DEVELOPERS, 7 NO. 7 Intell. Prop. Strategist 1 (May 2001) (“At first glance, patent law appears to impede those engaged in the free distribution of software: Software patents give their owners the right to prevent others from practicing the claimed software. However, patent law may in fact be a potential friend to those engaging in open-source/free software development. But the picture is not all rosy. To evaluate how best to take advantage of patent law to achieve an open-source software developer's business objectives, you need to be aware of both the potential benefits and pitfalls that patent law poses to open-source development.”).

Dennis M. Kennedy, A PRIMER ON OPEN SOURCE LICENSING LEGAL ISSUES: COPYRIGHT, COPYLEFT AND COPYFUTURE, 20 St. Louis U. Pub. L. Rev. 345 (2001) (“This article … discuss[es] the Open Source history and the role of the Open Source Definition, describe[s] the general categories of Open Source licenses, survey[s] generally some of the legal issues raised in the Open Source approach and with the Open Source licenses, and draw[s] some tentative conclusions about the likely impact of Open Source on traditional copyright and licensing law as it becomes a more significant component of the Internet and computer systems, as well as a part of our way of thinking about intellectual property and licensing in a rapidly changing world.”).

Marcus Maher, OPEN SOURCE SOFTWARE: THE SUCCESS OF AN ALTERNATIVE INTELLECTUAL PROPERTY INCENTIVE PARADIGM, 10 Fordham Intell. Prop. Media & Ent. L.J. 619 (2000) (“This paper … provid[es] a factual introduction into the details of the open source development process. Next, a background introduction to complexity theory [is] provided. The features of open source development [are] then … analyzed, uncovering the complex nature of open source development. While the complex nature of open source software provides an explanation as to its technical success, it also provides insight into a number of problems that are facing the open source community. The threats to the complex nature of open source development [are] considered and means of circumventing these problems suggested. Finally, the potential for complexity to solve some anticipated open source problems [is] discussed.”).

David McGowan, LEGAL IMPLICATIONS OF OPEN-SOURCE SOFTWARE, 2001 U. Ill. L. Rev. 241 (2001) (“Using the GNU/Linux operating system as a case study, [Professor McGowan] probes the organization of the open-source community and the philosophies of its leading members in order to understand how traditional firm models, intellectual property, and contract law might apply. Professor McGowan concludes by reviewing recent attempts by courts to impose traditional principles in computer software transaction disputes. Ultimately, it appears that the open-source community cannot be neatly categorized. Although many traditional firm theories--such as the formation of a hierarchy--and legal principles--such as copyright--do apply to the open-source model, these theories and principles are employed in creative ways not previously envisioned.”).

Stephen M. McJohn, THE PARADOXES OF FREE SOFTWARE, 9 Geo. Mason L. Rev. 25 (2000) (“For many software producers, the fact that their customer receives only the executable code is important. The producer attempts to maintain control over the code in two ways. She can deliver only the executable code, so the licensee can run the program but little else. She can also deliver the code subject to a license that restricts further copying and distribution, so the licensee does not turn around and sell or give copies to other potential customers. Open source software producers, by contrast, grant much freer access, both practically and legally, by delivering source code along with the executable code, and by freely granting permission to modify and further distribute the software. As discussed in the [article], open source software both challenges the theoretical underpinnings of intellectual property law and promises to affect the development of intellectual property law.”).

Shawn W. Potter, OPENING UP TO OPEN SOURCE, 6 Rich. J.L. & Tech. 24 (2000) (“This paper is structured to address several purposes in its discussion of the open source movement. First, Part III … discuss[es] on a broad level how society benefits from a software development process like open source, and how open source affects copyright and traditional notions of software piracy and reuse. Part III … also reviews[s] solutions that open source offers and outline the problems that may occur as the open source model continues to unfold. Part IV … considers the contemporary objections to open source products, and … demonstrate[s] that copyright, licensing, and warranties - the legal issues in software - basically make purchasers no worse off under an open source environment than a proprietary paradigm. As such, businesses and consumers should not shy away from open source products. Part V crystalizes the underlying issue in this paper: open source has many beneficial aspects, but still, the market has been slow to accept it. The article concludes with possible solutions to the problem of slow acceptance, as the author asserts that both the market and government can take steps to foster the growth of open source. In the end, the reader will recognize that the traditional objections to open source software are fairly minimal. While open source may not reach revolutionary status, it opens the door to positive changes regarding intellectual property rights and licensing.”).

Daniel B. Ravicher, FACILITATING COLLABORATIVE SOFTWARE DEVELOPMENT: THE ENFORCEABILITY OF MASS-MARKET PUBLIC SOFTWARE LICENSES, 5 Va. J.L. & Tech. 11 (2000) (“Although numerous claims of infringement and threats to seek legal resolution of software copyright issues have been made, no court ha[d] yet ruled on the enforceability of public software licenses. As a result, companies desiring to follow the open model of software development must bear the cost of this legal uncertainty, which, in turn, reduces the ability of these companies to compete in markets occupied by closed model firms. [The article] addresses every conceivable argument against the enforceability of public software licenses [and concludes that] [b]ased on current relevant doctrine and prevailing public policy interests, public software licenses that adhere to distinct procedural requirements are enforceable.”).


AN OVERVIEW OF "OPEN SOURCE" SOFTWARE LICENSES: A REPORT OF THE SOFTWARE LICENSING COMMITTEE OF THE AMERICAN BAR ASSOCIATION’S INTELLECTUAL PROPERTY SECTION, available at opensource.html (last modified November 6, 2001) (“This paper’s purpose is to flag some of the legal issues in an effort to provide a resource for software licensing lawyers who are requested to counsel their clients on the positive and negative aspects of [open source] licenses. Despite the many advantages of open source software licenses, there are reasons why lawyers must be cautious about recommending open source to their clients for inclusion in commercial software products.”).

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Updated: $Date: 2006/05/01 10:04:13 $ $Author: ramprasadb $