Copyright, Open Source, and Choice

Thanks to all of the people (mainly attorneys) here in Colorado who attended my open source software presentation to the Intellectual Property Law Section of the Boulder County Bar Association on Thursday of last week.

I included two slides in the presentation that I first used several years ago but have not included in recent presentations. The slides examine the impact that U.S. copyright law has had on the evolution of open source software licensing. They begin by highlighting a few of the basic differences between U.S. copyright law under the current Copyright Act of 1976 and past copyright law under the Copyright Act of 1909 (and, for that mater, the Copyright Act of 1790 before it):

While there are myriad differences between the two Acts, the slides attempt to make the basic point that until relatively recently U.S. copyright law required that affirmative actions be taken before copyright protection would apply to a work. In particular, if no notice of copyright was affixed to a work before the work was “published” as specified in the 1909 Copyright Act, then the Act provided that copyright protection would be lost and the work forfeited to the public domain. Likewise, once in force, if the copyright were not renewed at the end of an initial term, copyright protection would end and the work would pass into the public domain. The slides contrast this scenario with current copyright law under which copyright protection applies automatically — you might even say “virally” — to any and all even nominally creative works fixed in a tangible medium of expression (including, of course, software fixed in an electronic medium of expression). The slides also note that current copyright law has no provision for renewal, instead requiring all copyright owners to accept copyright protection for the entire term set forth in the Copyright Act.

This evolution has no doubt served to strengthen the protections provided by copyright law. In addition, it is also often credited with empowering copyright owners far more than in the past. On at least one level, however, current copyright law does just the opposite. By mandating a one-size-fits-all form of protection for all works (including software), current copyright law strips individual authors and developers of the power they formerly had to choose whether or not to partake in all of the protections afforded by copyright law — in essence treating all authors and developers alike without any regard to the personal preferences for protection they may have.

It is within this context that open source software licensing has also evolved. Contrary to what some have claimed, the slides make the point that open source software licensing has evolved not as a means to subvert copyright (and other intellectual property) laws but as a natural response to the increased protection and decreased choice available under those laws. Of course, open source software licenses do not work to change existing copyright law. Instead, they operate within existing laws to provide copyright owners with an increased means to choose how their works (i.e., their software programs) are made available to others under those laws. The fact that open source software licensing has grown in popularity (and the number of open source software license choices has also grown from the initial version of GNU GPL and a handful of other early licenses to now include more than 60 licenses approved by the Open Source Initiative) is, I would submit, itself a testament to the need for choice left unmet by existing copyright law but now being filled by open source software licensing.

Don’t get me wrong, I am all for copyright and other intellectual property protections. Indeed, the need for technology and intellectual property attorneys exists largely because of the laws that create those protections. However, I am also all for choice — and, where I frequently provide value as an attorney is in helping clients understand and evaluate the choices available to them under those laws. For a growing number of clients, one of those choices involves software offered (or offering software) under an open source software license. While choosing open source software over other options is not for everyone in every situation, it is increasingly unwise not to at least consider open source software (not to mention increasingly unrealistic to avoid doing so). In fact, you might even say that the only choice you do not have at this point is that open source software is now (almost) always an available choice. ;-)

Ping me with a comment if you would like to see the entire presentation.

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