Open Source And Copyright: A Complex Relationship

Open-source software is released under a license that grants users the right to use, study, change, and distribute the software and its source code. This is different from 'publicly accessible code', which can be proprietary. An open-source license serves as a legal agreement between the author and the end-user. When a work is created, copyright is automatically attached, and the creator has the right to commercially exploit it. However, in the case of open-source, the author expects others to use, modify, and share the work. So, while copyright law still applies, a license is needed to explicitly grant these permissions.

Copyright law and open source licensing

Copyright law applies to open-source licensing, but the two are distinct concepts.

Copyright law grants the creator of a work the exclusive right to reproduce, distribute, publicly perform, and create derivative works of that work. In most countries, including the United States, copyright laws are in line with the Berne Convention, which establishes that copyright is the legal right to use, copy, and redistribute a work. This right is automatic upon the creation of the work, and the creator has the exclusive right to make copies, release modified versions, distribute copies, perform publicly, or display the work publicly.

Open-source licenses, on the other hand, are software licenses that allow content to be used, modified, and shared. They facilitate free and open-source software (FOSS) development and are categorized as either permissive or copyleft. Both types of licenses grant permission to change and distribute software, but they typically require attribution and disclaim liability.

The key difference between copyright law and open-source licensing lies in their purpose and the rights they grant. Copyright law protects the creator's exclusive rights over their work, while open-source licensing provides users with the permission to use, modify, and distribute the licensed software.

It is important to note that open-source software is not the same as public domain software. In the case of public domain software, the author has deliberately surrendered all proprietary rights, including copyrights, allowing anyone to use the software without any restrictions. In contrast, open-source software is subject to the rights and restrictions specified in its accompanying license.

When using or distributing open-source software, it is crucial to comply with the requirements of the applicable open-source license to avoid copyright infringement. Failure to meet these requirements may result in the voiding of the license, and use of the software under such circumstances would constitute copyright infringement.

To summarize, copyright law and open-source licensing are distinct concepts, with copyright law granting exclusive rights to creators and open-source licensing providing users with permissions to use and modify software while adhering to certain conditions.

Copyright protection

However, open-source software presents a unique situation because it is intended to be used, modified, and shared by others. To address this, open-source software is released under a license that grants users specific permissions to use, study, change, and distribute the software and its source code. This license serves as a legal agreement between the author and the end-user, outlining the predefined terms and conditions for using the software.

It is important to note that public domain software, where the author has surrendered all proprietary rights, is different from open-source software. Public domain software does not require a license, and programmers can use it without restrictions. In contrast, open-source software licenses may have various requirements and consequences, and failure to comply with these requirements can result in copyright infringement.

To avoid legal risks, companies should implement an open-source policy to maintain a record of open-source software usage and ensure compliance with the applicable licenses. This record is crucial when responding to due diligence requests during financings, acquisitions, or when providing product documentation to customers.

Additionally, open-source licenses can be categorized as "permissive" or "copyleft". A permissive license is a non-copyleft license that allows users to create proprietary derivative works. On the other hand, a copyleft license requires that derivative works or modifications of the open-source software be distributed under the same open-source license. The GNU General Public License (GPL) is an example of a widely used copyleft license.

Open source software and intellectual property infringement

Open-source software is software that can be freely accessed, used, changed, and shared (in modified or unmodified form) by anyone. It is usually developed by many people and distributed under licenses that comply with the Open Source Definition.

The Open Source Definition provides ten criteria that must be met for any software license, and the software distributed under that license, to be labelled "Open-source software". Only software licensed under an Open Source Initiative-approved Open Source license should be labelled "open source".

Open-source licenses are accompanied by a specifically purchased software program. The Open Source Initiative governs the intellectual property (IP) rights of an open-source license and it must meet the following criteria:

• The licensee has the right to distribute and charge money for the program.
• The licensee has access to and the right to modify the program's source code.
• The licensee has the right to distribute and charge for any and all modifications.
• The program is usable by those in all fields and industries.
• Anyone who receives the program gets license rights without necessitating an additional agreement.
• The rights apply to programs bought independently or as part of a bundled software group.
• The licensee can distribute the program along with any other software and in any form.

The Free Software Foundation is the genesis of open-source software after its creation by computer scientist Richard Stallman in the 1980s. The missions of this organization include promoting the right of users to study, use, copy, redistribute, and modify software programs, promoting the use and development of free software and documentation, and raising awareness of political and ethical issues associated with free software use.

The risk of intellectual property infringement is greater with open-source software because it is developed without the usual controls present in the commercial software development process. Thus, if a programmer downloads an open-source program to which a previous user has added infringing code, the programmer would unknowingly be exposed to liability for infringement, potentially resulting in an injunction or legal damages.

To avoid the legal risks inherent in the use of open-source software, companies should consider implementing an open-source policy to maintain a record of open-source software use and to ensure compliance with the applicable open-source licenses.

Open source licenses and commercial software licenses

Open-source licenses are licenses that comply with the Open Source Definition, which means they allow software to be freely used, modified, and shared. When you create a new project, it is under exclusive copyright by default, meaning that nobody else can use, copy, distribute, or modify your work without being at risk of legal repercussions. However, the nature of open-source software is that the author expects others to use, modify, and share the work. Therefore, a license is required to explicitly give these permissions.

There are over 80 variations of open-source licenses, but they generally fall into one of two primary categories: copyleft and permissive. A copyleft license is a license type in which code derived from the original open-source code inherits its license terms. A permissive license is a license type that provides more freedom for reuse, modification, and distribution.

Some of the most popular copyleft licenses include the GNU General Public License (GPL), the Affero GPL (AGPL), the Lesser General Public License (LGPL), the Eclipse Public License (EPL), and the Mozilla Public License (MPL). The GPL, for example, preserves license notifications and copyright terms and is suitable for commercial, patent, and private use. Any software that uses GPL code must distribute all its source code under the same license. The AGPL is similar to the GPL but includes a remote network interaction clause that triggers the GPL license for any software used over a network. The LGPL provides the same level of terms as the AGPL and GPL but does not require the distribution of the larger project if smaller projects or objects are accessed through it. The EPL is commonly used for business software and allows for the combination and sublicensing of software developed using EPL, non-EPL, and even proprietary code, provided that any non-EPL elements reside independently. The MPL is the least restrictive copyleft license and allows for the modification and use of code in closed-source and/or proprietary software, as long as the code licensed under the MPL is kept in separate files and distributed with the software.

The most popular permissive open-source licenses include the Apache License, the MIT License, the Berkeley Source Distribution (BSD) License, and the Unlicense. The Apache License requires license notifications and copyrights on the distributed code but allows derivative works, larger projects, or modifications to carry different licensing terms and are not required to provide source code. The MIT License is perhaps the most used open-source license in the world due to its brevity and clarity. It allows anyone to do whatever they wish with the original code as long as the original copyright and license notice are included in the distributed source code or software. The BSD License is another permissive license that preserves license notices and copyrights but allows larger or licensed works to be distributed without source code and under different license terms. The Unlicense is the least restrictive open-source license, as it places the open-source code into the public domain, meaning that no conditions apply and unlicensed works can be distributed without source code and under different terms.

When choosing an open-source license, it is important to consider the intention behind the software. If the intention is to make the code as reusable and shareable as possible, a permissive license is probably the best choice. Additionally, if the software is used over a network, it can be advantageous to choose the AGPL to prevent companies from improving on the product and monetizing it without being required to distribute their modifications.

Open source licenses and patent rights

Open source licenses are a type of software license that allow users to use, modify, and share the software, as well as its source code. The primary idea behind distributing software under an open source license is for anyone to be able to view and use the "source code" of the computer program, as well as modify the same for their own purposes.

On the other hand, a patent gives the owner of the patent or a patentee, the right to exclude others from making, using, and selling his/her invention, thereby giving them absolute control over the use of their invention.

While the two concepts are distinct, they can coexist in two ways:

• An author of an open-source software may apply for a patent for that software.
• An invention using an open-source software modification may be included/specified in a patent application.

It is important to note that open source licenses can contain explicit or implicit patent grants. About half of all open source licenses include express patent grants, but the scope of those licenses may vary depending on the language of the grant. Some older permissive licenses do not discuss patents directly and offer only implicit patent grants in their offers to use or sell covered material. Newer copyleft licenses and the 2004 Apache License offer explicit patent grants and limited protection from patent litigation.

Additionally, it is worth noting that open source has become a way of working that is beyond mere copyright production. Innovations accelerate when ideas are shared, when they are collaborative, open, and modifiable.

Frequently asked questions