The Article is dedicated to what is currently one of the most contested topics of cyberlaw: the proposition that software should be “open.” After briefly describing the nature of software and how intellectual property law presently applies to software, the Article points to an ostensible inconsistency in the application of copyright law to software that might be responsible for legal academia’s favorable reaction to the open source movement. Thereafter, the Article critically evaluates a number of policy reasons for affording software various types of legal protection, including those developed by Larry Lessig in his works on cyberlaw. Its conclusion is that any move towards more openness would be highly undesirable from the perspective of society, as it would destroy the market-based incentive structure that currently encourages software producers to develop code that consumers find attractive. Finally, drawing on two widespread theories of intellectual property law—the utilitarian incentive theory and the Lockean labor-desert theory—the Article shows that the perceived inconsistencies identified earlier are in fact no inconsistencies at all and that there is hence no compelling reason why the current legal framework should change.
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