Free and Open Source Software and the Twin Tragedies

Abstract

"The past decade has seen the rise and rise of free and open source software (FoSS). Part I of this paper surveys the FoSS movement from its early days to the present, including its fundamental philosophy. This part also looks into the different factors that have contributed to the growth of FoSS, such as the motivations of coders to be part of a “free” creative endeavor, the relatively flexible hierarchical structures that give considerable space for “free play”, and the shared values that integrate coders completely into the movement thus nurturing new creative activity from time to time. Part II switches gears to property theory, focusing on the tragedy of the commons. I proceed to gauge its possibility in the intangible property space. Then, I go on to explore reasons as to why this tragedy has not apparently occurred in the FoSS experience and whether such apparent non-occurrence should embolden us to discount the role of intellectual property rights in incentivizing innovation. I present an alternate vision of the FoSS model, one where both proprietary and FoSS models have in fact been instrumental to a considerable extent in averting a “theft economy” in the software world and thus preventing the occurrence of this tragedy. Part III proceeds to examine the “anticommons” tragedy, recalibrates it in the context of intangible intellectual property, and builds a case for my conclusion that the FoSS model has been effective in averting a serious anticommons tragedy in the software sector – an effect that has not been given its due recognition. A short conclusion follows in Part IV, where I discuss, in brief, the lessons for copyright and patent policy from this success of the FoSS movement in averting an anti-commons problem."