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), https://digitalcommons.law.uw.edu/faculty-articles/75
How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B
Houston Law Review
The computer industry moves from one “next great thing” to the next “next great thing” with amazing speed. Graphical user interface, object-oriented programming, client-server computing, multimedia software, Java applets, the network computer, and the Internet have all been hailed as technological breakthroughs at one time or another. Some of these promising developments fizzle, some evolve and succeed slowly, and some revolutionize the industry overnight.
Led by a group of software developers known as “hackers,” the latest “next great thing” is “open source” software. The word “source” refers to software in source code form. Source code is the collection of instructions a computer programmer writes to tell a computer what to do. A programmer writes source code in a certain programming language, such as Basic, Pascal, C++, or Java. The source code is understandable to anyone proficient in that language. Using a software tool, source code is converted into a form called binary or executable code that a computer can execute.
The word “open” in the context of open source software refers to source code that is freely available and modifiable. Most software publishers distribute their software to the mass market in binary form only. They treat source code as a trade secret and license it selectively on a confidential basis. The open source software movement claims at least two major advantages over traditional commercially developed software. First, hackers claim that by making source code widely available and freely modifiable, programmers can develop higher quality software and fix bugs faster than commercial software developers. Second, they believe that products based on open source software will be relatively inexpensive compared to traditional commercial software.
Hackers think they have started a revolution that will overtake the leading commercial software publishers of today. The fact that another revolution has begun in the computer industry is not a surprise. The surprise is that licensing, known as “copyleft,” is at the heart of the revolution. 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.