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Strategies for a Generative Future 189
those creating new but not completely original creative works to avoid infringing
others’ rights. This is a particular problem for code developed with the tools
of group generativity. For the past twenty years, the modern landscape of information
technology has accommodated competing spheres of software production.
These spheres can be grouped roughly around two poles warring for
dominance in the field. On one side is proprietary software, which typically
provides cash-and-carry functionality for the user. Its source code “recipe” is
nearly always hidden from view as a technical matter, and as a legal matter it
cannot be used by independent programmers to develop new software without
the rarely given permission of its unitary rights holder. On the other side is free
software, referring not to the price paid for a copy, but to the fact that the
source code of the software is open to public view and modification.
It is not easy for the law to maintain neutrality in the conflict between the
two spheres, evenhandedly encouraging development in both models. For example,
the free software movement has produced some great works, but under
prevailing copyright law even a slight bit of poison, in the form of code from a
proprietary source, could amount to legal liability for anyone who copies or potentially
even uses the software. (Running software entails making at least a
temporary copy of it.)
The collaborative nature of free software development makes it harder to determine
where various contributions are coming from and whether contributions
belong to those who purport to donate them. Indeed, in the case of an
employee of a software company charitably moonlighting for a free software
project, the employee’s work may not even be the employee’s to give. A barely
remembered but still enforceable employment agreement may commit all software
written by the employee to the employer’s possession, which would set the
stage for an infringement claim against those within the free software project
for making use of the employee’s contributions.
Major free software projects try to avoid these problems by soliciting declarations
from participants that they are only contributing code that they wrote
or to which they have free license. The Free Software Foundation even suggests
that employees obtain a disclaimer from their employers of all interest in employee
contributions. 63 But the danger of poisoned code remains, just as it is
possible for someone to contribute copyrighted material to Wikipedia or a
Geocities home page at any moment. The kind of law that shields Wikipedia
and Geocities from liability for material contributed by outsiders, as long as the
organization acts expeditiously to remove infringing material once it is notified,
ought to be extended to the production of code itself. 64 Code that incor-