|
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.
|
