Open Source Software Licensing: Using Copyright Law to Encourage Free Use

• Citation: Vol. 17 No. 3
• Publication year: 2010

Open Source Software Licensing: Using Copyright Law to Encourage Free Use

Natasha T. Horne

Introduction

The open source movement is gaining widespread attention due to a number of recent developments in the computer software industry.[1]With these recent developments, it is no wonder that the term "open source software," or "free software,"[2] has become one of the hottest buzz words in the computer industry.

The computer industry continues to evolve at amazing and unprecedented speed. The Internet has, in a very short amount of time, gone mainstream. But with this fast-paced development and with the increased use and acceptance of computers, the software industry struggles to meet the demands of its users. Users seek rapid releases, easy customization, and quick bug fixes. Some critics believe that today's software industry cannot survive in this fast-paced marketplace without making some

revolutionary changes. Their answer? Open Source Software.[3]

Part I of this Note reviews and discusses the history and philosophies of the open source movement. Part II discusses the roles copyright and software licensing play in open source software development. Part III examines the licensing terms of several popular open source licenses used today. Part IV provides a few pointers for selecting a license. Finally, Part V suggests that the open source movement may be disproving the need for financial incentives under copyright law.

I. What Is the Open Source Movement?

A. What Is "Open Source"?

Unknown to most, the open source movement has been around for decades since the beginning of the development of the UNIX platform.[4] However, only recently has the term gained attention through the growing popularity of several open source projects and through the increasing popularity of the Internet.[5]

The open source movement revolves around the notion of making software "open source," or in other words, making source code freely available to anyone.[6] The word "open" refers to making source code freely available to other developers so that they can enhance the software, modify the code, or fix software bugs and glitches.[7] The word "source" refers to source code.[8] Source code consists of statements written by a software programmer in a programming language,[9] such as C, C++, Pascal, Fortran, Java, or Basic. These statements instruct the computer as to what commands to process.[10] Software tools convert source code into object code.[11] It is actually the object code that the computer executes and understands.[12] However, it is very difficult for humans to read or modify this code.[13]

Historically, companies have made software available to third parties only in object code form.[14] Companies view their source code as intellectual property, or as a trade secret, and therefore, rarely release it to third parties.[15] In the event a company does decide to release the source code, it releases it under very strict licensing terms.[16] The Open Source Movement hopes to change this proprietary way of thinking.[17]

B. What Is the Open Source Movement?

The open source movement comprises a community consisting primarily of developers and organizations interested in revolutionizing the software industry.[18] The movement believes that in order for the software industry to meet the demands of this rapidly changing marketplace efficiently, developers must make source code freely, or openly, available.[19]

The open source development model suggests several advantages. First, allowing everyone to view and modify the source code results in higher quality software and rapid innovation.[20] Users from around the world can easily participate in the development and testing of a software product via the Internet or email.[21] The community places great value in the high level of expertise possessed by the developers who write, modify, and enhance the code.[22]

Further, through this collaboration, the product will develop quickly and efficiently.[23] In contrast to a proprietary development model, no schedules govern development under the open source model.[24] For example, as the need for increased functionality arises, any developer can implement code from around the world at any time without prior permission from the owner of the code.[25] Also, by making source code open for the world to use, modify, and reuse, developers can use any other developer's enhancements and modifications to the code when they have a need for similar functionality.[26]

On the other hand, the open source development model has several shortcomings. First, no one entity maintains control over common development issues, such as compatibility.[27] This commonly leads to fragmentation, also called "forking."[28] Fragmentation results when multiple varying versions of a software package emerge in the marketplace.[29] These varying versions can easily confuse consumers.[30] Further, there is no organization responsible for the product.[31] This could present problems when software bugs are too difficult for the user to fix and too low a priority for anyone else to fix.[32] Also, development under this model can be "chaotic and undirected."[33] Development depends solely on the interest of the developers and is rarely managed by one organization or individual.[34] Lastly, in an open source model, "there are limited financial incentives for improvements and innovations."[35] Often, the developers volunteer their time and participate only in their spare time.[36]

It is noteworthy, however, that there are differing theories on how "open" open source should be.[37] For example, should a developer who has modified or enhanced open source software be required to give these modifications or enhancements back to the open source community?[38] Should proprietary code that has been combined with open source code fall under the open source licensing terms?[39] When developing software under an open source development model, it is essential to select a license that corresponds with one's theory of open source development.[40]

II. Open Source Software Licensing

Because software is very easy to copy but very "difficult and expensive to create,"[41] it is important to protect software through copyright law.[42] The Copyright Act of 1976[43] (hereinafter "the Act") allows a software developer to retain control over the use of his work, and it protects his software code from unlawful copying and distribution.[44] Copyright offers "an inexpensive means of protecting . . . software from unauthorized copying and misappropriation."[45]

In 1980, Congress amended the Act to include copyright protection for computer programs.[46] Under the Act, computer programs are considered "literary works" and are protected from unauthorized copying.[47] The legislative history of section 102(b) makes clear that the "expression" adopted by the programmer is the copyrightable element in a computer program;[48] the actual processes or methods embodied in the program are not within the protectable scope of copyright law.[49]

Copyright protects all forms of computer code and may also extend to program design documentation, including schematics and flowcharts;[50] user manuals and software documentation;[51] the structure, sequencing, and organization of the code;[52] and the program's user interface.[53] Copyright also extends to new material that the author adds to a previously existing work.[54] For example, a derivative work may include an updated version of an existing program or a translation of a program to another language platform.[55]

Once a work is copyrighted, the author has secured a bundle of exclusive rights. Under section 106, these rights include the right to reproduce the work; the right to create "derivative works" based on the work; the right to distribute copies of work to the public by sale, license, or lease; the right to perform the work publicly; and the right to display the work publicly.[56]

Although registration of a copyright is not required,[57] it is beneficial. Once registered, an author is "presumed the owner of the copyright in the material deposited with the registration."[58] The information submitted with the copyright registration form is presumed to be true in the absence of proof to the contrary.[59] If the author registers his work before infringement or within three months of publishing, and the author prevails in an infringement suit, he receives two additional benefits.[60] First, in the event of litigation, the court can order the infringer to pay attorney's fees and court costs.[61] Second, the author may elect to have the court award statutory damages up to $100,000 per infringement without having to establish damages actually suffered.[62]

Infringement occurs when someone "exploits one or more of the . . . owner's exclusive rights without . . . permission."[63] This usually involves the unauthorized reproduction or distribution of the work, or the unauthorized creation of derivative works based on it.[64]

A. Licensing Generally

When an owner of a work "decides to transfer to one or more people the use and enjoyment of part or all of his ‘bundle of legal rights,'" yet wishes to retain ownership of these rights, he uses a license.[65] The license "defines the nature and extent of [the granted] permission."[66] Normally, the original owner of the bundle of rights grants the licenses.[67] Sometimes, however, a license allows a licensee to grant sub-licenses.[68]

B. Proprietary Software Licensing

In a proprietary software development model, code is first copyrighted and then distributed under a license agreement that gives its users special rights.[69] Proprietary licenses usually "restrict software to execute-only format" and limit the number of installations allowed per copy of software.[70] Generally, only those users who have bought the software can use it.[71] Further, as mentioned above, a developer or a developing organization rarely...