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Intellectual Property and Open Source by Van Lindberg

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Chapter 11. Accepting Patches and Contributions

Imagine that you are a developer with a new open source project. You got permission from your employer (Chapter 9), you chose a license (Chapter 10), and you released version 0.01 on the Web. The next day, you received a bug report and a patch.

Great, but who owns the bug report? Who owns the patch? Can you use them?

Most people would answer that of course they can use the patch—after all, that is why the contributor sent it in. Unfortunately, that is not the whole story. Open source is a great mechanism for sharing code and sharing ideas, but it relies upon copyright to function smoothly. Therefore, proper copyright licensing has to be respected.

Back to (Copyright) Basics

Copyright is sometimes called the “metaphysics of the law” because it can get so theoretical about the interplay of ideas, expressions, and works. It should not be surprising, then, that the first item to be determined is whether a patch is a “work” that is eligible for copyright protection.

Rules for Works

Unfortunately, courts have not established a clear, easily applicable standard regarding whether or not something is a copyrightable work, especially in the software realm. Nevertheless, there are a number of good rules of thumb that can help you make this determination.

Patch length

The first thing to look at is the length of the patch. While there is no set length for determining whether something is a copyrightable work or not, many courts have found that very short ...

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