Understanding Open Source and Free Software Licensing

Chapter 1. Open Source Licensing, Contract, and Copyright Law

Open source licensing and development approaches have been challenging and transforming software development for decades. Although open source licensing is often described as radical, it is built on solid, traditional legal foundations, including the rights granted by copyright under the law of the United States (and elsewhere), and the ways in which basic contract principles can alter and supersede those rights.

Basic Principles of Copyright Law

Under the laws of the United States (and of European countries, through the Berne Convention, and of members of the World Trade Organization through the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights), copyright is automatically attached to every novel expression of an idea, whether through text, sounds, or imagery. For example, the words in this paragraph are protected by copyright as soon as they are written. This also applies to diary entries, letters, song lyrics, and drawings, even if they are only done "off the cuff," in the most casual of circumstances.

For example, a drawing of a dog made on a café napkin is copyrighted simultaneously with its creation and is the sole property—barring any contractual abrogation of the copyright—of its creator. This drawing cannot be copied, displayed, or otherwise commercially exploited by any person other than the creator for the life of the copyright. Among other things, no person other than the creator has the ...