The growing popularity of free and open source software as a viable alternative to proprietary software has made it an unwitting participant in an inevitable intellectual property law confrontation that will pit patent against copyright. Where proprietary software is primarily protected by patents, which seek to exclude others from the use of specific ideas, open source software utilizes a variation of copyright protection, which seeks to force the inclusion rather than the exclusion of third parties’ access to expression. Because these methods of protection are as different as the software models themselves, it is difficult to predict the outcome of this unfolding conflict which has never been directly litigated in court. This comment advocates that the public would be best served by allowing both software models to coexist. From this position, it explores the distinction between the two types of protection utilized and recommends changes which will both maximize innovation and preserve freedom of choice.
Kirk D. Rowe, Why Pay for What's Free?: Minimizing the Patent Threat to Free and Open Source Software, 7 J. Marshall Rev. Intell. Prop. L. 595 (2008)