Dec 04

Seven Key Ideas About Copyright and Open Source

Disclaimer: IANAL. These are specific to US Copyright Law; they may or may not apply elsewhere. Additionally, this post is written in the area of Software and Open Source. Rules may apply differently to other forms of endeavor.

The following are not meant to be exhaustive, but rather an introduction to rules of thumb to remember when using Open Source.

1. Copyright is the exclusive right to use and distribute a creation granted by law.

The copyright holder may grant rights to others, however, they still maintain exclusive rights to their creation.

2. Copyright exists on creation; no registration is required. Nor is © required. However, if you wish to sue for statutory damages, the creation must be registered with the Library of Congress.

This is according the Copyright Act of 1976 as amended. Prior to 1976 the rules were different, but it’s unlikely that one will see Open Source from prior to 1976.

Nevertheless, if you are creating software is is a good idea to include a copyright declaration. This makes it easier to trace the history of a piece of code — generally Open Source licenses require any copyright notices to be preserved.

Works made for hire automatically belong to the employer and, for the purpose of copyright, the employer is the author of the work. This means you can’t take software from a previous employer to a new one.

3. Ideas, recipes, and algorithms cannot be copyrighted, but the ways in which they are expressed may be.

The classic example here is that of a cookbook — the list of ingredients and the steps cannot be copyrighted, but the format, font, arrangement, and text may be.

4. Open Source, while copyrighted, is licensed for use with commensurate obligations which need to be fulfilled.

These obligations are specified by the license under which the code is released. The Open Source Initiative has a fairly comprehensive list of the most common licenses. Additionally, the Software Package Data Exchange (SPDX) is a good resource; SPDX is growing in popularity and

“is a standard format for communicating the components, licenses and copyrights associated with a software package.” — What is SPDX

5. Software distribution triggers most Open Source obligations.

In the past it was easier to define distribution — it typically consisted of the physical transfer of media. However, now the vast majority of distribution happens over the Internet. Javascript on a web page can be considered to be distributed.

6. If there is no declared license, it is not Open Source.

If there is not a license, then all rights are reserved to the copyright holder. Consequently…. it isn’t open source.

7. Just because you can read the source or it’s on Github, Sourceforge, Stack Overflow, or some other site doesn’t mean it is Open Source.

The vast majority of projects on Github do not have licenses. As a consequence, they aren’t Open Source. You can:

  • Read their code
  • Learn from their code
  • Ask them to declare a license
  • Not use their code

Is it stealing if they give it to you? Maybe....

Is it stealing if they give it to you?

Stack Overflow has its own issues. By the terms of the site, anything you post there is licensed under a Creative Commons (CC-BY-SA) license. But what if you post code which is a work for hire and belongs to your employer? You don’t have the legal right to do so and any use by anyone else is likewise a violation of your employer’s copyright.

I know this post barely scratched the surface — it’s not intended to be deep, but the start of a discussion. There’s more to follow on the topic of Open Source.

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