공개라이선스에 의한 공정거래법 위반가능성

초록

In the field of IP(Intellectual Property) licenses, the open source license may make some extraordinary problems related to anti-trust act. In U.S., Daniel Wallace sued IBM, Red Hat and Novell for “restraint of trade by way of a licensing scheme to fix the prices of computer software”. Wallace claimed that the GNU GPL and the Linux operating system were a conspiracy that resulted in the foreclosure of competition in the market for computer operating systems. Also, in the field of bio-technology, some open source biotechnology projects use the power of the patent system to ensure that the core technology of the project and any innovations remain openly available under the copyleft licenses. In the above case, the court finds that Mr. Wallace has failed to allege an antitrust injury such that his claim under Section 1 of the Sherman Act may move forward, for that the open source system is consistent with patent policy. Also, many scholars explains that the open source group is not trying to restrict the supply of available products. On the other hands, one might argue that open source arrangements could be characterized as an attempt by the original open source group to prevent the development of a downstream product that would be available on different terms. But, the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation. Thus, the effects of Linux and the open source biotechnology system should not be considered anticompetitive under the antitrust rule of reason, and therefore should not constitute patent misuse.

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