Understanding Open Source and Free Software Licensing

Contract and Copyright

In the United States, all of the rights belonging to the creator of a work become theirs at the time of the completion of that work in a fixed medium. No registration is required, nor does any signed writing need to be executed in order to preserve those rights. Rather, these rights arise entirely from the operation of the statutory law.

Creators rarely take advantage of these rights by themselves, however. The production and distribution of works on a large scale has historically been capital-intensive, so creators of works have generally relied on others to produce the physical copies of their works and distribute them. The idea of copyright developed in parallel with the development of the printing press in the fifteenth century, and it originally protected the rights of printers to exclusively exploit works that they had commissioned. Legal enforcement, and, in particular, international legal enforcement, being what it was in the fifteenth and sixteenth centuries, copyrights were frequently disregarded. Of course, given the systematic violation of copyrights in many parts of the world today, it can be argued that the situation has not changed that much.

The relationship between the creator of a work and its publisher is often an uneasy one. The creator, naturally, wishes to retain both control over the use of the work and the income stream derived from commercial exploitation of the work. The publisher, whether a book company, a record label, or a film ...