The Penguin and the Cartel: Rethinking Antitrust and Innovation Policy for the Age of Commercial Open Source, 2012 Utah L. Rev. 269 (2012)
This Article untangles the paradox of OS sharing and asks what judges and policymakers can do to help OS reach its full potential. Part II sets the stage by describing the rise of commercial OS over the past ten years. It also profiles a leading commercial OS collaboration (The Eclipse Foundation) and describes the various design issues that face such organizations. Part III examines how companies make investment decisions in OS, closed source (â€šÃ„ÃºCSâ€šÃ„Ã¹), and mixed OS/CS markets. Part IV uses these ideas to analyze when OS collaborations should and should not be permitted under the Sherman Act. It argues that OS collaborations can usually write licenses that satisfy the rule of reason. It also proposes two safe harbors in which OS collaborations should be presumed to be procompetitive. Part V examines the antitrust status of so-called â€šÃ„Ãºviralâ€šÃ„Ã¹ licenses. It argues that very broad licenses (notably GPL) are unnecessarily restrictive and violate the Sherman Act. Part VI reviews how governments can use taxes, grants, and procurement policy to help OS sharing reach its full potential. Finally, Part VII presents a brief conclusion.