This article is written for readers that have questions about open source software and their corresponding licenses, but that have little to no knowledge of the basic principles of copyright (and copyleft), although they may have heard the terms thrown around.
The goal is to provide readers an elementary understanding of the potential risks in utilizing open source software. This guide will be released in five short-ish parts to ensure that all the major points of copyright, licensing, and infringement are discussed.
What this guide will not do is provide legal advice, or a substitute for it. The range of issues that are present in these five very short sections, if discussed at a substantive level, would fill hundreds, if not thousands of pages.
So for Part 1, I want to cover some of the basics: copyright vs copyleft, what a license is, and what copyleft licenses are.
What is Copyright?
Copyright (a.k.a “authors right”) are the rights possessed by an author of their original work. An original work can be just about anything. It can be drawings, music, stories, collections, maps, computer software, databases, sculptures, et cetera.1
Generally speaking, if a human being can create it, it’s probably copyrightable. Sometimes it’s easier to describe what something is, by describing what it is not. So, copyright does not protect ideas, procedures, processes, systems, methods of operations, concepts, principals, or discoveries.2
Although copyright cannot protect procedures, processes, methods of operations and systems, that is not to say that these items cannot be protected via other intellectual property vehicles, such as a patent, trademark or trade secret.
Generally, discoveries (think “E=MC2”), concepts (think “science fiction”), principals (think “addition”) or ideas (think “flying”) are not copyrightable. Why these items are excluded from copyright protection, and more generally what intellectual property is, goes far beyond the scope of this article.3
What rights does a creator of copyrightable material possess?
Once a creator (hereinafter “author”) has created an original work, they possess certain rights in the work.4Much like physical property, intellectual property can be bought and sold. However, due to the intangible nature of copyright, additional protections need to exist. Those rights and protections are codified in the various states around the world, and contained in various treaties.5For example, the Copyright Act is contained in Title 17 of the United States Code.
In general, the rights of an author include: 1) reproduction of the copyrighted work; 2) preparation of derivative works based upon the copyright work; 3) distribution of the work; and 4) public performance or display of the work. The performance or display is usually limited to literary, musical, dramatic and choreographic works.6
The notion of distribution, performance and reproduction of copyrighted material is fairly straightforward, but where a large portion of copyright litigation has arisen over the centuries (yes centuries), is the concept of derivative works.
I promise, this is important when we discuss open source licensing.
What are derivative works?
When the term derivative work is used, we are talking about work that is derived from one or more previously existing works. The derivation can be in many forms, but generally speaking the most well known derivative works involve the transformation of a copyrighted work.
Common examples of derivative works would include adapting a novel into a television show, or creating a sculpture based upon a drawing. But transformations are not the only way a derivative work is generated. New editions of a preexisting work also qualify as derivative works. For example, a new version of an existing computer program.
Remember, only the owner of the copyright can prepare, or authorize the preparation of, derivative works.
For example, say a hypothetical software developer uses Open Source software X to create software X-1, a novel and useful improvement on software X’s original feature set. Who “owns” software X-1? Is it our software developer? Is it Open Source X? Where do we need to start to analyze the problem?7
Copyright vs. Copyleft
Now that we have a cursory understanding of what copyright is, what about copyleft? In a general sense, copyleft is the mirror image of copyright.8
Whereas copyright provides exclusive rights to the copyright holder, copyleft provides inclusive rights to the users of the material, with rules in place to prevent users of copyleft materials from attempting to exclude others from their free use.
Stated differently, copyleft ensures that everyone can use the “copylefted” material.
So, if we know that copyright protections extend to derivative works, does copyleft protections extend to its corresponding derivative works as well? A favorite answer by many attorneys to the chagrin of their clients is “It depends.”
What it depends upon is the language of the copyleft license that the open source developer has included in the open source software itself. That license, if well drafted, will provide guidance as to what the rights and responsibilities of its end users are.
Hold on, what about a “permissive license”?
Some open source licenses contain language that allow for derivative modifications to have different copyright terms than the parent license. Those are called “permissive licenses” as they allow a user to modify the software and copyright the derivative modifications for their own proprietary use and monetization. For example in the Apache 2.0 license their permissive use language states:
You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.
So Apache 2.0 is a permissive license in that it permits the creation of a more restrictive derivative work. Not every license is permissive, and in part 2 of this series we will discuss the various copyleft and permissive open source licenses.
Because a license is a contract, the issuer of the license has full creative control over the scope of the license, and this is clearly reflected in the sheer number of open source licenses that are in common use.
So, what are open source licenses?
Lets briefly talk about what a “license” is. Every license is a contract, however, not every contract is a license. Licenses are a special subset of contracts in which a grantor conveys to a grantee some right to do some act, which would otherwise be illegal without such authorization by the grantor. Contracts under the common law are simply an agreement between two or more parties to do, or not do, some action.
For a simple example, when you purchase a ticket to a football game, that ticket represents a license for you to enter the stadium, subject to the terms and conditions created by the issuer. Without this ticket, it would be illegal for you to be within the stadium. Have a little too much fun at the game, the stadium can remove you (a.k.a rescind the license) for violations of the license terms.
Licenses to use software are no different. The license is a grant of permission to use the copyrighted material, in this case the software itself.
Use the software in a manner that the licensor prohibited, and you lose the license to use the software. The use of copyrighted material without a license to do so constitutes infringement, so ensuring compliance with the terms of the license is incredibly important.
One of the largest players in the open source landscape is the Open Source Initiative, the de facto body which maintains standards for open source licensing. Their “seal of approval” on licenses ensures that they conform to the “Open Standards Requirement” for software.9
In short, the OSR exists to ensure that when software is licensed as open source, not only the licensing terms itself, but the dissemination, availability and underlying technology that the software runs on is free from restriction. More on that later.
Conclusion of Part 1
Part 1 is complete (but also subject to updating), in Part 2 I will walk through the most common open source licenses used, and provide a summary of the similarities and differences between the various licenses. I will also address the “stickiness” of the language contained in these licenses as they apply to derivative works.
Part 3 will move on to the modern “practical” problems and example cases that exist when developers leverage open source technologies in their technology stacks, and touch upon the newest issue of dynamic and static linking of open source software. Part 4 will focus on infringement of open source licenses and the corresponding remedies.
Finally in part 5, I want to analyze a hypothetical software developer that has leveraged different open source software stacks to provide a deep dive analysis of what potential pitfalls are present for our budding entrepreneur.
- 17 U.S.C. § 101(a) provides a list of copyrightable subject matter. Generally these definitions have been agreed upon by the member states of the World Intellectual Property Organization, but are not necessarily identical. A helpful link to the entire Copyright Act is found here.
- 17 U.S.C. § 101(b)
- For an introduction to the various means and methods of defining intellectual property, see Alexandra George, The Metaphysics of Intellectual Property. W.I.P.O.J, Issue 1 (2015).
- Registration of a copyright is not necessary in the United States to create a copyright, but helps substantially with enforcing a copyrighted article. Once created, copyright comes into creation automatically.
- WIPO Copyright Treaty (WCT) (1996). The WCT summary is here.
- 17 U.S.C. § 106 (2016).
- For purposes of our hypothetical, we will assume that software X-1 is derivative of X. Normally, the threshold issue that would need to be addressed is whether X-1 is derivative at all. If it is not, then there cannot be any copyright infringement. The “abstract-filtration-comparison” test laid out by the Second Circuit in Computer Associates Int’l, Inc. v. Altai Inc. is the method to use to determine if software infringement has occurred. Future articles by the author will address the AFC test in Altai and its progeny in greater detail.
- Copyleft traces its roots back to the first GNU General Public License, originally written by famed computer scientist and programmer Richard Stallman, who believed that the free use and modification of software was a moral imperative.
- The OSR standards are found here and the definition of open source is found here.
