Revisión de equipos, productos y personas

The public domain strategy adopted by the BBF has brought to the fore something largely untested in the case of F/OSS,224 which is how much the success

222. On the commercialization of the research university setting, see discussion supra notes 153-156.

223. Multiple personal communications with BBF board members, and Mark Fischer, 2011. This hope is not merely a rationalizing of the inevitable, though it may have a wine from sour grapes character. It would be more plausible if the for-profit sector in this field could be expected to avoid patent thickets and blocking patents on foundational technologies, but there is no reason to expect diverse corporate actors to coordinate in this manner absent some form of governmental oversight, as discussed briefly in Part VI below.

224. The GPL’s share-alike provision has only recently, and rarely, come up for judicial scrutiny. Several recent cases, mostly coming out of a dispute between Versata and Ameriprise, hinged on the enforceability of share-alike provisions and remedies for breaching those GPL terms. However, after dismissal of several claims, those cases were settled. See Y. Peter Kang, XimpleWare, Versata Settle Insurance Software IP Dispute, LAW360 (Feb. 11, 2015), http://www.law360.com/articles/620898/ximpleware-versata-settle-insurance-software-ip -dispute [http:// perma.cc/8B2S-P67S]; see also Aaron Williamson, Lawsuit Threatens to Break New Ground on the GPL and Software Licensing Issues, OPENSOURCE.COM (Jul. 30, 2014), http://opensource.com/law/14/7/lawsuit-threatens-break-new-ground-gpl-and-software -licensing-issues [http:// perma.cc/68LZ-W5T2]. Had they been decided, these cases would have considered several important issues, among them: (1) whether a third party beneficiary can enforce a share-alike provision; (2) whether violations of share-alike provisions would be considered copyright infringement and therefore eligible for injunctions and statutory damages to be determined in federal court; (3) what damages are appropriate in cases where GPL version 2

of commons-based peer production depends on legal enforcement of the terms of an unconventional copyright license and how much it is sustained by essentially non-coercive norms of community reciprocity. As a practical matter, the BBF has pursued its public domain agenda with the expectation that, whatever the motivations underlying it, the success of F/OSS in the digital economy reveals the possibility of open production. And yet, because its public domain strategy depends on non-legal mechanisms to expand the synthetic biology commons, the question of the motivation and capacity of individuals to contribute to collective projects remains a significant one. Without a commons-expanding license provision, the BBF has had to consider the normative foundations of peer production. How will the synthetic biology commons grow without a legal requirement imposed on the users of contributed parts? And are there non-legal prerequisites to successful peer production of the kind that the BBF hopes to galvanize in synthetic biology?

In this Part, I scrutinize the role of what I call infrastructural prerequisites to peer production. These prerequisites can be taken largely for granted in established fields. By contrast, I argue that the success of an emerging field such as synthetic biology depends on a set of infrastructures that enable production under either a proprietary or peer-to-peer model—that is to say, irrespective of the particular legal regime governing the distribution of innovation. Too determined a focus on the legal regime governing innovation may, in fact, obscure recognition of the fundamental role that non-legal infrastructures—shared resources, including physical and social platforms, technological routines and processes, and institutional norms—play in any kind of production. To varying degrees and in different respects, infrastructures prove the bedrock of all successful cooperative activity, however pursued. And yet, as I argue below, these infrastructures are usually prerequisites to the forms of routine production that they enable, whether proprietary initiatives channeled through the market or community-driven peer projects. They cannot, therefore, be generated by the activity they enable but must usually be available prior to it.225

Understanding how infrastructure enables downstream innovation allows us to recast the debate over the rationality of peer production. A great deal of the scholarly literature on peer production has focused not on the design of the infrastructures that enable production of either a proprietary or commons-based kind, but on the much-debated reasons for which individuals are motivated to contribute their labor, time, and expertise to collective creative endeavors that do not rely on conventional market incentives.226 The backdrop to this persistent focus is the undoubted success of many F/OSS projects and the impetus they have given to other efforts at peer production, including the experiment in open synthetic biology.

share-alike provisions are violated; and (4) what constitutes a derivative of share-alike code.

225. See discussion infra Part V.B-C.

226. This puzzle has been a persistent one and, unsurprisingly, the subject of ongoing research and reflection, including among scholars of intellectual property law. See sources cited infra note 231 for a further discussion of these issues.

From a conventional perspective, especially as informed by the logic of the so- called “free rider” problem, this decentralized collaboration presents a puzzle. However, as I argue in Subpart IV.A below, the rationality of what Yochai Benkler has termed “commons-based peer production”227 may depend on whether infrastructures are available to support it. In particular, as I discuss in Subpart IV.B, networked peer production depends on a particular kind of shared resource— platform infrastructures that distinguish a relatively invariable core set of elements in a system from a larger, more variable set that uses elements from the core.

Synthetic biology provides a particularly clear example through which to consider these problems since the infrastructural prerequisites for successful peer production are not yet established. In their absence, synthetic biology suffers from what I call “infrastructure gaps” that currently inhibit the growth of the field, which I discuss in Subpart IV.C below. In particular, the networked peer production that the BBF now envisages228 requires platform infrastructures similar in architecture to those that have enabled decentralized peer production in F/OSS and related fields.