Emory Law Journal


Clark D. Asay


This Article argues that copyright is an increasingly significant cause of anticommons concerns in the software context for at least two related reasons. First, the increasingly collaborative nature of much modern software innovation means that any given software resource is subject to dozens, hundreds, or even thousands of distinct copyright interests. While collaborative innovation licensing models help reduce the threat, these licensing models do not altogether eliminate such risks. Second, interoperability needs in the growing ¿Internet of Things¿ and ¿cloud¿ economies demand sharing and reuse of software for these ecosystems to work. Yet because these technological ecosystems implicate thousands of different parties with distinct copyright interests, the threat of those parties using its rights looms large. As a possible solution to these types of problems, this Article assesses the merits of more explicitly adapting copyright¿s fair use defense to the collaborative and interconnected nature of modern software innovation.