Copyright versus Patents: the Open Source Software Legal Battle

Open Source Software is often viewed as an anti-intellectual property regime. By contrast, we argue how IP law is at the heart of open source model since licenses that organize the innovation and business relationships between developers, distributors and end-users are based on copyright law. The proliferation of software patents can, however be seen as a threat for the development and deployment of open source software. We present the nature of the threat and review a series of initiatives undertaken by the open source community to address them effectively. These initiatives, such as the redesign of licenses and the creation of patent commons, are a testiment to a genuinely creative use of IP law by the open source community, not its undermining.