Canadian Journal of Law and Technology


Alana Maurushat


open source software, software licensing, intellectual property


This paper is structured to address several aspects and challenges to the open source movement. Beginning with an outline of the historical and cultural components of the open source movement, the paper will move on to explore the economic and philosophical underpinnings of intellectual property. It will be demonstrated that open source finds itself uniquely situated within these theories and doctrines. The questions that open source poses for intellectual property will then be examined. My arguments will stem from the general premise that open source is threatened by three mechanisms: the uncertainty of the validity of open source licenses, potentially over-expansive copyright law, and by the growth in computer software patents. The core of this paper will outline the beneficial aspects of open source: it provides competition to those few corporations who currently dominate the software market; it presents a viable alternative to traditional economic models for software; and it protects fundamental societal values such as free speech by acting as a counter force against governmental and market control of code. The conclusion crystallizes the underlying notion of this paper: should intellectual property laws be amended or interpreted in order to foster open source? Given the important and invaluable economic and social role open source plays in the computer software industry, legislative and regulatory measures should be developed to promote and encourage open source.