Introduction to the International Free & Open Source Software Law Review

Posted On: 29 July 2009

Author: Iain G. Mitchell QC

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Foreword and statement of purpose:
An introduction to IFOSS L. Rev.

By The Editorial Committee,
coordinated by Iain G Mitchell QC

Purpose

The world is changing.  Old structures, old business models and old ways of thinking are breaking down.  Such a world is, at once, full of challenges or, depending on your point of view, opportunities.

In his book, The Media Lab: Inventing the Future at MIT, Stewart Brand wrote:

"Information wants to be free.  Information also wants to be expensive.  Information wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter.  It wants to be expensive because it can be immeasurably valuable to the recipient.  That tension will not go away.  It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better."

Yet tension may be creative: it may lead to constructive change.  Once it seemed that the future belonged to the large monopoly corporations which had as their business model, software as a commodity - a commodity to be expensively packaged, shrink-wrapped, shipped, and retailed.  The source code was the crown jewels, to be guarded, and legally fenced to preserve its value.

But in a world of ever-increasing connectedness and convergence, where software can be downloaded or services supplied across the Internet at a unit cost which is as near to free as you can get, commoditising software in the most expensive way possible - by turning a virtual good into a physical good, no longer makes sense as it used to.  Even the value of software as a commodity (however it is distributed) makes less and less sense when one realises that most of the end-users do not want software for what it is, but for what it does.

In such a market place, the large corporations' dominant positions, so important in bolstering their control of the software market, count for less if the customers, in placing of having sitting on their desktops software they don't want, acquire the services they do want over the Internet.  This new paradigm of service delivery makes it irrelevant what the software is, and helps open up competition to a wider diversity of software models.

In the old days of the big corporations' unchallenged market dominance, there arose a movement which was as much aspirational and philosophical as it was grounded in market considerations - the Free and Open Source Software movement.  Like most movements, it was not homogeneous: a few of its adherents prophesied the death of copyright and fancied themselves close to the epicentre of a cause which would shake the earth and bring down the heavens, but many more of its supporters saw clearly that the idea was profoundly market-oriented, pitting against the large anti-competitive monopolies a healthier and more vigorous market where software developers and users shared the source code and worked together in freedom to run, modify, distribute and redistribute programs.  The old monopolistic corporations used copyright to close the source code down and to restrict its use, but the new model was to use copyright to do the opposite, to open the source code up and freely share it, and so, Richard Stallman coined the epithet ''copyleft' to describe this new use of copyright law.

Free and open source software is software which is covered by a licence very different from a traditional commercial software licence, in that it grants the users - under certain conditions - the right to use, study, modify and distribute the software.  For these purposes, the user is granted access to the source code and the right (and sometimes even the obligation) to distribute the source code further afield.

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