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, London School of Economics and Political Science.
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.
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