The Future of the Internet by The Future of the Internet

Author:The Future of the Internet
Language: eng
Format: mobi
ISBN: 9780141951812
Publisher: Penguin Books Ltd
Published: 2008-02-06T20:00:00+00:00

BALANCING GENERATIVE AND NON-GENERATIVE SYSTEMS

Code thickets

A number of scholars have written about the drawbacks to proprietary rights thickets: overlapping claims to intellectual property can make it difficult for those creating new but not completely original creative works to avoid infringing others’ rights. This is a particular problem for code developed with the tools of group generativity. For the past twenty years, the modern landscape of information technology has accommodated competing spheres of software production. These spheres can be grouped roughly around two poles warring for dominance in the field. On one side is proprietary software, which typically provides cash-and-carry functionality for the user. Its source code “recipe” is nearly always hidden from view as a technical matter, and as a legal matter it cannot be used by independent programmers to develop new software without the rarely given permission of its unitary rights holder. On the other side is free software, referring not to the price paid for a copy, but to the fact that the source code of the software is open to public view and modification.

It is not easy for the law to maintain neutrality in the conflict between the two spheres, evenhandedly encouraging development in both models. For example, the free software movement has produced some great works, but under prevailing copyright law even a slight bit of poison, in the form of code from a proprietary source, could amount to legal liability for anyone who copies or potentially even uses the software. (Running software entails making at least a temporary copy of it.)

The collaborative nature of free software development makes it harder to determine where various contributions are coming from and whether contributions belong to those who purport to donate them. Indeed, in the case of an employee of a software company charitably moonlighting for a free software project, the employee’s work may not even be the employee’s to give. A barely remembered but still enforceable employment agreement may commit all software written by the employee to the employer’s possession, which would set the stage for an infringement claim against those within the free software project for making use of the employee’s contributions.

Major free software projects try to avoid these problems by soliciting declarations from participants that they are only contributing code that they wrote or to which they have free license. The Free Software Foundation even suggests that employees obtain a disclaimer from their employers of all interest in employee contributions.63 But the danger of poisoned code remains, just as it is possible for someone to contribute copyrighted material to Wikipedia or a Geocities home page at any moment. The kind of law that shields Wikipedia and Geocities from liability for material contributed by outsiders, as long as the organization acts expeditiously to remove infringing material once it is notified, ought to be extended to the production of code itself.64 Code that incorporates infringing material is not given a free pass, but those who have promulgated it without knowledge of the infringement would have a chance to repair the code or cease copying it before becoming liable.

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