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Analyzing the Production of the Law of Cyberspace
Unformatted Document Text:  20 cannot be used for private profit. As a result, any code using free code, must be available for free. The second branch of the open source movement emerged later and more pragmatically for commercial reasons. This group favors the term open source instead of free software. The difference is that with open source code, it is permissible to make changes to the source code, copyright the changes, and then sell the code for commercial gain. 77 This allows firms, such as Apple and Microsoft, to incorporate open source software into the software they sell. 78 For this branch, the value of open source code is its openness, which allows for a technically superior development process. Thus, a principal difference between these two branches is whether open source code can be commingled with proprietary code. The motivations of the open source movement are varied. 79 There are a small number of paid participants as well as private firms. 80 These entities, such as IBM, have a direct financial motivation in the development of open source code. However, for the vast majority of participants, who are unpaid, their motivations are fourfold. First, they develop code that they themselves need. This occurs because there is no alternative in the marketplace or the alternative is costly. 81 Second, many developers find enjoyment in developing code as a creative 77 Open Source Initiative, The Open Source Definition, available at http://www.opensource.org/docs/definition_plain.html (last visited Oct. 18, 2001) (defining open source); Open Source Initiative, History of the OSI, available at http://www.opensource.org/index.html (last visited Jan. 27, 2002). 78 Apple’s new commercial operating system, OS X, is built upon the open source operating system BSD Unix. Joe Wilcox, Will OS X’s Unix roots help Apple grow?, CNET N EWS . COM , May 21, 2001, available at http://news.cnet.com/news/0-1006-200-5992099.html. Similarly, Microsoft’s services and products such as Windows 2000 have components derived from the open source movement. Lee Gomes, Microsoft Uses Open-Source Code, W ALL S T . J., June 18, 2001. 79 See F ELLER & F ITZGERALD , supra note 72, at 137-54 (discussing the various motivations for the open source movement). 80 See Nikolai Bezroukov, Are Key Open Source Developers Volunteer Developers?, available at http://www.softpanorama.org/OSS/Bla_faq/are_oss_developers_volunteers.shtml (last visited Aug. 3, 2002) (explaining that “many important open source projects are developed with a mixture of volunteers and paid developers. The developers are paid by firms that have vested interest in the code.”). 81 Raymond, supra note 73.

Authors: Shah, Rajiv. and Kesan, Jay.
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20
cannot be used for private profit. As a result, any code using free code, must be available for
free. The second branch of the open source movement emerged later and more pragmatically for
commercial reasons. This group favors the term open source instead of free software. The
difference is that with open source code, it is permissible to make changes to the source code,
copyright the changes, and then sell the code for commercial gain.
77
This allows firms, such as
Apple and Microsoft, to incorporate open source software into the software they sell.
78
For this
branch, the value of open source code is its openness, which allows for a technically superior
development process. Thus, a principal difference between these two branches is whether open
source code can be commingled with proprietary code.
The motivations of the open source movement are varied.
79
There are a small number of
paid participants as well as private firms.
80
These entities, such as IBM, have a direct financial
motivation in the development of open source code. However, for the vast majority of
participants, who are unpaid, their motivations are fourfold. First, they develop code that they
themselves need. This occurs because there is no alternative in the marketplace or the alternative
is costly.
81
Second, many developers find enjoyment in developing code as a creative
77
Open Source Initiative, The Open Source Definition, available at
http://www.opensource.org/docs/definition_plain.html (last visited Oct. 18, 2001) (defining open source); Open
Source Initiative, History of the OSI, available at http://www.opensource.org/index.html (last visited Jan. 27, 2002).
78
Apple’s new commercial operating system, OS X, is built upon the open source operating system BSD Unix. Joe
Wilcox, Will OS X’s Unix roots help Apple grow?, CNET N
EWS
.
COM
, May 21, 2001, available at
http://news.cnet.com/news/0-1006-200-5992099.html. Similarly, Microsoft’s services and products such as
Windows 2000 have components derived from the open source movement. Lee Gomes, Microsoft Uses Open-
Source Code
, W
ALL
S
T
. J., June 18, 2001.
79
See F
ELLER
& F
ITZGERALD
, supra note 72, at 137-54 (discussing the various motivations for the open source
movement).
80
See Nikolai Bezroukov, Are Key Open Source Developers Volunteer Developers?, available at
http://www.softpanorama.org/OSS/Bla_faq/are_oss_developers_volunteers.shtml (last visited Aug. 3, 2002)
(explaining that “many important open source projects are developed with a mixture of volunteers and paid
developers. The developers are paid by firms that have vested interest in the code.”).
81
Raymond, supra note 73.


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