VIRAL OPEN SOURCE: COMPETITION VS. SYNERGY

Abstract

The creation of free and open source software (FOSS) through social networks has been celebrated as one of the most interesting and inspiring developments of the information age. The main legal platform selected for facilitating this collaborative creation is the GNU General Public License (GPL). Software released under the GPL enables anyone to use, modify, and distribute the code. Yet, these rights are contingent upon virality: every copy or work based on the original code must also be subject to such terms and conditions. This article analyzes the interesting and intricate effects of virality on welfare and innovation. Virality increases motivations for parallel innovation, both in open source and in commercial code, inter alia by facilitating competition among networks and by preventing commercial firms from appropriating FOSS. At the same time, by almost closing the door on synergies between FOSS and commercial technologies, it limits cumulative innovation based on synergy and interoperability. As shown, FOSS creates an even stronger anti-commons tragedy than the patent regime. Virality's (non)regulation will thus determine the balance, as well as the connecting bridges, adopted by society between the two modes of production as well as between competition and synergy. While this issue arises in other contexts, the unique features of the software industry and of FOSS raise complex challenges. This article then analyzes market and legal responses to the GPL's virality. Such analysis is timely given that the viral GPL has become standard in many socially produced FOSS projects.