Law Commons^™

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Considering A Right To Repair Software, Robert W. Gomulkiewicz

Articles

The right to repair movement aims to extend the usability of products by allowing a consumer (or a repair professional acting on the consumer’s behalf) to fix broken products. Implicitly, the movement’s focus has been on hardware—on the right to repair cars, tractors, and phones. But as more and more of the functionality of goods comes from software, it is important to consider whether we need a right to repair software. There are practical challenges to software repair. For example, fixing software is more difficult and treacherous than fixing hardware. Complicating matters further, more and more software is embedded in …

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

Articles

As open source software ("OSS") has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License ("GPL"), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of …

Foundations For Open Scholarship Strategy Development, Version 2.1 [Pre-Print], Jonathan Tennant, Jennifer E. Beamer, Jeroen Bosman, Björn Brembs, Neo Christopher Chung, Gail Clement, Tom Crick, Jonathan Dugan, Alastair Dunning, David Eccles, Asura Enkhbayar, Daniel Graziotin, Rachel Harding, Johanna Havemann, Daniel S. Katz, Kshitiz Khanal, Jesper Norgaard Kjaer, Tim Koder, Paul Macklin, Christopher R. Madan, Paola Masuzzo, Lisa Matthias, Katja Mayer, David M. Nichols, Elli Papadopoulou, Thomas Pasquier, Tony Ross-Hellauer, Michael Schulte-Mecklenbeck, Dan Sholler, Tobias Steiner, Pawel Szczesny, Andy Turner

Copyright, Fair Use, Scholarly Communication, etc.

This document aims to agree on a broad, international strategy for the implementation of open scholarship that meets the needs of different national and regional communities but works globally.

Scholarly research can be idealised as an inspirational process for advancing our collective knowledge to the benefit of all humankind. However, current research practices often struggle with a range of tensions, in part due to the fact that this collective (or “commons”) ideal conflicts with the competitive system in which most scholars work, and in part because much of the infrastructure of the scholarly world is becoming largely digital. What is …

Bazaar Transnational Drafting: An Analysis Of The Gnu Public License Version 3 Revision Process, Christopher M. Dileo

San Diego International Law Journal

This Article will step through the drafting process and compare bazaar and cathedral modes of drafting to determine if a bazaar mode can efficiently produce a legal instrument that crosses legal regimes. As the title suggests, the bazaar process analysis case will be the GNU General Public License version 3 (the GPLv3) Revision Process. A comparison of the advantages and disadvantages of the bazaar mode of drafting to the cathedral mode of drafting will hopefully demonstrate the overall value of a transnational bazaar process like the GPLv3 Revision Process.

Powering Intellectual Property Sharing: How To Make Tesla’S Patent Pledge Effective, Benjamin M. Hill

Journal of Intellectual Property Law

No abstract provided.

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Maine Law Review

The subject matter we are going to talk about is variously named and the words have some resonances of importance. I am going to use the phrase “Free Software” to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

Rethinking Ucita: Lessons From The Open Source Movement, Matthew D. Stein

Maine Law Review

For those within the information technology (IT) industry, the phrase “open source” has been as prominent at water cooler and boardroom discussions over the last several years as the phrase “out source.” Open source is at once a software development model, a business model, a social movement, and a philosophy that has recently garnered attention from outside of the IT sphere. As such, the topic has become increasingly fertile ground for academic scholarship from several disciplines. Economists, legal academics and practitioners, computer engineers, and social commentators have offered their varying perspectives on open source software. Whether or not this attention …

Open Source Approaches In Biotechnology: Utopia Revisited, Yann Joly

Maine Law Review

Tracing its origin to Greek antiquity, intellectual property has become an institution in modern legal systems worldwide. This growing importance of intellectual property was confirmed with the 1994 adoption of the Trade-Related Aspects of Intellectual Property Rights Agreement by the World Trade Organization (WTO), which harmonized the rules of intellectual property amongst the various members of the international community on the model of developed countries. However enshrined in the legal tradition, intellectual property law has also had its share of detractors and has recently come under severe criticism. The exercise of intellectual property rights in such diverse fields of creation …

Balancing Open Source Paradigms And Traditional Intellectual Property Models To Optimize Innovation, Lisa M. Mandrusiak

Maine Law Review

Copyrights and patents grant property rights to creators and inventors in order to spur further innovation through the dual approach of increasing the amount of material in the public domain and rewarding inventors and creators for their efforts. However, in recent years, it has been postulated that extensive granting of copyrights and patents may in fact stifle additional creation and development. This led to a revolt in the computer programming industry and spawned the open source movement, which provides software with its source code and a license allowing for free creation and distribution of works. This movement attempts to spur …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Hacking Trademark Law For Collaborative Communities, Yana Welinder, Stephen Laporte

Fordham Intellectual Property, Media and Entertainment Law Journal

Collaborative communities create popular work with widely recognized brands, such as Wikipedia, Linux, Android, and Firefox. Trademark law can provide protections to members of these communities and the users of their products so that they can rely on the brands to identify the original projects. This Article explores the conflict between collaborative communities and trademark law. While collaborative communities thrive on openness and decentralization, trademark law requires centralized quality control and various formalities. This Article introduces a descriptive taxonomy of “hacks” that collaborative communities have used to try to mitigate the tensions between their values and trademark law. These hacks …

Federalist Society’S Intellectual Property Practice Group And Its Stanford Law School Present A Debate On Open Source And Intellectual Property Rights, Lawrence Lessig, F. Scott Kieff, G. Marcus Cole

University of Massachusetts Law Review

Transcript of the Federalist Society’s Intellectual Property Practice Group and its Stanford Law School Chapter debate on Open Source and Intellectual Property Rights with panelists Professor Lawrence Lessig from Stanford University and Professor F. Scott Kieff from Stanford University and moderated by Professor G. Marcus Cole from Stanford Law School. This debate took place on Wednesday, March 30, 2005 in Palo Alto, California.

The Gpl Meets The Ucc: Does Free Software Come With A Warranty Of No Infringement Of Patents And Copyrights?, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The GNU General Public License, known as the GPL, is the cornerstone of free software. The GPL has served as the organizing document for free software, providing a structure that has helped transformed the development of software and electronic devices. Software licensed under the GPL may be freely copied and adapted. The source code for the software is made available, to enable anyone to study and change it. The GPL does have "copyleft" restrictions, intended to keep the software free for others. If someone adapts and redistributes GPL’d software, they must likewise allow access to their source code. The GPL …

The Impact Of Open Source On Preinvention Assignment Contracts, Michael Mattioli

Michael Mattioli

This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. …

A Case For The Public Domain, Clark D. Asay

Faculty Scholarship

Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without …

Printing The Impossible Triangle: The Copyright Implications Of Three-Dimensional Printing, Brian Rideout

The Journal of Business, Entrepreneurship & the Law

Three-dimensional printing (3D printing), which allows users to digitize and replicate objects, is emerging as the next potentially disruptive technology. It is now possible to “print” intricate objects from furniture to food to human organs. Because 3D printing relies on computer-based blueprints in order to create physical objects, digital copyright infringement can now impact the physical world. The first example occurred in February 2011, when the world's first Digital Millennium Copyright Act (DMCA) takedown notice for a 3D printed object was sent. This article describes how 3D printing works in relation to copyright law, first by discussing this DMCA takedown …

Shrinking The Commons: Termination Of Copyright Licenses And Transfers For The Benefit Of The Public, Timothy K. Armstrong

Faculty Articles and Other Publications

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used "open content" licensing arrangements, such …

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case's greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by …

Open Source, Open Access, And Open Transfer: Market Approaches To Research Bottlenecks, Robin Feldman, Kris Nelson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Open Legislation Development, Jacob Ewerdt

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Authorship In The Age Of The Conducer, Erez Reuveni

Erez Reuveni

The age of centralized information production is over. Today, countless creative enterprises involve decentralized collaboration by hundreds of end-users. Yet, the Copyright Act's last major revision occurred over thirty years ago, when a centralized, corporate model of production was the primary means of delivering information products on a mass-market scale. This Article contends that several features of the Copyright Act, remnants of this earlier corporate-driven era, are outmoded and fail to offer optimal incentives for the decentralized, non-profit-driven model of creative production utilized by many in the software and information-production fields. Specifically, the Copyright Act assumes creativity stems from the …

Open Source, Free Software And Contractual Issues, Jose Javier González De Alaiza

ExpressO

“Free software” is an increasingly used form to license computer programs, which on the one hand gives users the rights to use, modify and redistribute the program; and, on the other, forces any person redistributing an original or modified version of the program to license it with the same rights. Such a forced obligation is introduced through the so called “copyleft clause” and, basically, uses Copyright in a creative way to achieve freedom instead of control.

This paper discusses the “free software” foundations and contractual issues. The discussion is structured in two main parts and Conclusion. In Part II, the …

Commercializing Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

ExpressO

A major shift toward open source software is underway. Companies are more critically evaluating the cost effectiveness of their IT investments, seeing the benefits of collaborative development, and looking for ways to avoid vendor lock-in. At the same time, academics and industry visionaries are criticizing the use of a traditional appropriation mechanism for innovation—the patent—by bemoaning the decisions of U.S. and foreign governments to permit software patents, the rising numbers of patents on software-related innovations (the so-called “arms race” build-up), and the cost and frequency of patent litigation in the software industry. The critics generally have applauded the shift towards …

Open Access In Law Teaching: A New Approach To Legal Education, Matthew T. Bodie

All Faculty Scholarship

The "open access" movement seeks to change our approach to the distribution of scholarship in the fields of science, medicine, the social sciences, and law. This Essay argues for the application of these principles to legal education itself. Open access would mean greater flexibility, interaction, and innovation in the creation of course materials. It would lead to new teaching methods and new forms of feedback between student and professor. Open access centers on particular legal subject areas could facilitate national and international collaboration. Ultimately, the open access law school would ameliorate the growing standardization and commodification of legal education by …

The Impact Of Open Source On Preinvention Assignment Contracts, Michael Mattioli

Articles by Maurer Faculty

This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. …

Commercializing Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

Faculty Scholarship

For several years now, open source software products have been gaining prominence and market share. Yet the products themselves are not as provocative as the way in which they are developed and distributed. Two related features of the open source model are distinctive: the use of collaborative development structures that extend beyond the boundaries of a single firm, and the lack of reliance on intellectual property ("IP") rights as a means of appropriating the value of the underlying technologies. Firm-level control of intellectual property is replaced by a complex set of relations, both informal and sometimes contractual, among strategic partners …

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Entrepreneurial Open Source Software Hackers: Mysql And Its Dual Licensing, Robert W. Gomulkiewicz

Articles

Hackers often quibble about commercializing software, yet most willreadily sell their programming services. Richard Stallman, the father of free software, has always recognized that hackers have a right to make money. Aside from selling programming services, however, Stallman's disciples seem to frown upon commercializing software. Other hackers, labeling themselves "open source" developers, have warmed to the possibility that free software may be profitable.

This article describes one of the most promising business models for hackers, called "dual licensing." In this model, hackers offer the same code under two different licenses: a commercial license and an open source license. Licensees who …