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The Price of Free Software: Information Costs and the Free Software Foundation's General Public License

The open source model, initially spawned by anti-proprietary ideology, was adopted by the software industry as a viable alternative to proprietary software. Along with the open source paradigm, commercial firms also adopted the GPL, a restrictive license that manifested the core objectives of the Free Software Foundation (“FSF”). This segment that adopted the open source model and the GPL has an important role to play in the current intellectual property regime in battling the centralized proprietary system. However, in a paradoxical way, the interpretation and enforcement of the GPL, especially by the FSF, does not necessarily serve this goal. The paper shows that some proprietary uses of the GPL, which constitute GPL infringement under the promulgated stance of the FSF, are both within the lawful rights of any party, and could even assist in the battle against centralized proprietary rights. However, the high information costs involved in such proprietary use, derived from the special nature of GPL along with its strong enforcement, lead to a default adoption of the FSF’s stance. This fallback decision prevents efficient propriety uses in a way that might cause the GPL to resemble its worst enemy – the IP laws – more than it even intended.