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Authoring collaborative projects: a study of intellectual property and free and open source software (FOSS) licensing schemes from a relational contract perspective

Zhu, Chenwei (2011) Authoring collaborative projects: a study of intellectual property and free and open source software (FOSS) licensing schemes from a relational contract perspective. PhD thesis, The London School of Economics and Political Science (LSE).

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Abstract

The emergence of free and open source software (FOSS) has posed many challenges to the mainstream proprietary software production model. This dissertation endeavours to address these challenges through tackling the following legal problem: how does FOSS licensing articulate a legal language of software freedom in support of large-scale collaboration among FOSS programmers who have to face a rather hostile legal environment underlined by a dominant ideology of possessive individualism? I approach this problem from three aspects. The first aspect examines the unique historical context from which FOSS licensing has emerged. It focuses on the most prominent “copyleft” licence—GNU General Public Licence—which has been shaped by the tension between the MIT-style hacker custom and intellectual property law since the 1980s. The second aspect tackles the legal mechanism of FOSS licences, which seems not dissimilar from other non-negotiated standard-form contracts. My analysis shows that FOSS licences do not fit well with the neoclassical contract model that has dominated software licensing jurisprudence so far. I therefore call for replacing the neoclassical approach with Ian Macneil’s Relational Contract Theory, which has remained conspicuously absent in the software licensing literature. The third aspect explores FOSS programmers’ authorship as manifested in FOSS licensing. It argues that the success of a FOSS project does not merely depend on the virtuosity of individual programmers in isolation. More importantly, a core team of lead programmers’ efforts are essential to channel individual authors’ virtuosity into a coherent work of collective authorship, which can deserve credit for the project as a whole. The study of these three aspects together aims to create a synergy to show that it is possible to graft a few collaborative elements onto the existing legal system—underpinned by a neoliberal ideology assuming that human beings are selfish utility-maximising agents—through carefully crafted licensing schemes.

Item Type: Thesis (PhD)
Additional Information: © 2011 Chenwei Zhu
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Supervisor: Barron, Anne
URI: http://etheses.lse.ac.uk/id/eprint/294

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