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In the 1600s, the British government faced continuous threats from pirates. In fact, in a span of less than a decade, Barbary Coast corsairs plundered nearly 500 merchant vessels, commandeering the ships and selling the crews and passengers into slavery. The pirates roamed with impunity, often ransacking and even decimating coastal settlements.
But the corsairs weren't the only pirates profiting at the time. The invention of the printing press by Johannes Gutenberg in 1436 greatly simplified the manufacturing -- and piracy -- of books. Armed with moveable type presses, Scottish plagiarists "looted" British booksellers by selling bootlegged tomes at prices 30-50 percent below the price of an original.
So, beginning with the Licensing Act of 1662, improved by the Statute of Anne in 1710, and further clarified by the case of Donaldson v. Beckett in 1774, the British Parliament created much of the modern notion of "copy right," a law that grants certain exclusive rights to the author, or proprietor, of a creative work.
In particular, Parliament created "copy right" as the right to manufacture copies. The Statute of Anne mandated that an author or a duly appointed agent of the author could exclusively reproduce a particular book on a particular (physical) printing press and sell those copies to the public. In effect, "copy right" granted the author an entitled monopoly and made it a criminal offense for anyone else to print unauthorized copies of a work.
But in response to the favoritism demonstrated in the Licensing Act of 1662, the framers of the Statute of Anne chose to limit the term of an author's monopoly to 21 years. With that term limit affirmed in the case of Donaldson v. Beckett, the Statute of Anne deemed that after a "copy right" expired, the associated work became unencumbered, allowing the work to be freely consumed by the general public and freely duplicated by any publisher. In other words, after an author's "copy right" expired, the work matriculated to a "public domain" -- a novel and compelling notion that didn't exist prior to 1774.
Copyright is (still) fundamental
Today, nearly 300 years after the Statute of Anne was passed into law, the same fundamental tenets of copyright remain, and the rights of an author prevail as an essential impetus to create new works. Indeed, copyright has been expanded frequently and greatly since 1710 to comprehend emerging technologies, to protect innovative forms of creative works of all kinds, and to protect the author's entitled monopoly.
For example, the International Copyright Act of 1886 gave an author the exclusive right to produce translations, and the British Copyright Act of 1911 extended copyright protection to sound recordings and works of architecture. (Similarly, the United States' revision of its Copyright Act in 1909 broadened copyright protection to music and further to all works of authorship.) More recently, a revision of the U.S. Copyright Act in 1976 extended copyright protection to unpublished works and codified what constitutes "fair use." And in 1998, the United States' (much-maligned and sometimes ambiguous) Digital Millennium Copyright Act granted protection to boat hull designs and allowed computer users to make temporary copies of computer programs for the purpose of maintenance (among other changes). Copyright now protects photographs, screenplays, images (as created, say, in Adobe Photoshop), typefaces, Web pages, sound effects, movies, and more.
Of course, copyright has also been expanded to protect software, which is yet another (albeit rather unique) form of authorship. As it does for a novelist, painter, and musician, copyright extends certain exclusive rights to the creator of a software program. (Copyright is often referred to as a negative right because it restricts what others can do with the work.)
The privileges of the software developer
Specifically, the privileges of a software developer (like any other author) include:
- The right to produce copies of the work and to sell those copies, including electronic copies and executable binaries
- The right to create derivative works (works based upon one or more pre-existing works and considered an original work of authorship)
- The right to sell or assign any of the rights granted by copyright to others
NOTE: Copyright provides other rights to a creator; see U.S. Code, Title 17. Also, an author can be an individual or a group. If the latter, and if the work was created in concert and intended to be used as a whole, the work is considered a joint work, and the rights provided by copyright are controlled by the group.
According to these rights, the author of a piece of software is its sole proprietor and has complete control over how the code is reproduced, sold, and reused. Interestingly, an author may not waive any of the rights provided by copyright. However, an author can choose to transfer or license any subsisting rights, wholly or separately, according to the author's own terms.
The term license essentially means permission. The copyright holder, or licensor, grants another person or entity -- the licensee -- specific permissions to use the work, typically for a specific term and in a certain well-defined territory (such as the world, North America, or Spain), in return for some consideration, which may include monetary compensation. If money is part of the consideration, a licensor can ask for a one-time payment, or royalty, or a combination of the two.
The term license is also commonly used to refer to the (legal) document that captures the terms of the agreement between the licensor and licensee. Hence, a software license is an agreement that dictates how a piece of software can be used. For example, a proprietary software license may grant a user permission to run a program, but not see its source code.
The phrase open source license is an umbrella for a large number of agreements that try to license the copyrights inherent in software widely, fairly, and with as few restrictions as possible. No doubt, you've heard of the Berkeley Software Distribution (BSD) license -- the first open source license -- created in 1993. Other notable open source licenses include the GNU General Public License, the Apache License, and Sun Microsystems' Common Development and Distribution License. In fact, more than 50 open source licenses are listed on the Open Source Initiative (OSI) Web site.
Each of these open source licenses is tailored to meet certain goals for specific kinds of content (for example, some for software, others for documentation, still others for images or data) and varies in its terms, but each shares five fundamental intents (from attorney Lawrence Rosen's Open Source Licensing: Software Freedom and Intellectual Property Law and used with permission):
- Licensees are free to use open source software for any purpose whatsoever.
- Licensees are free to make copies of open source software and are free to distribute those copies without payment of royalties to a licensor.
- Licensees are free to create derivative works of open source software and are free to distribute those works without payment of royalties to a licensor.
- Licensees are free to access and use the source code of open source software.
- Licensees are free to combine open source and other software.
As mentioned, the rights subsisting in a piece of software cannot be waived by its author, but must be transferred or licensed. Here, all the intentions begin with the word "licensees," declaring that each specific permission is being granted only under the terms of a license. A licensee can agree to the terms and enjoy the prescribed permissions or forgo using the software.
Intention 1 is plain enough, but its extent is both broad and subtle. Open source software doesn't require the licensee to audit usage, justify any application, or document the deployment.
Intention 2 is also clear, but what the grant doesn't say is important, too: Consistent with Intention 1, Intention 2 does not impede the sale of open source software. So, while you can make copies and distribute them, both freely, you can also sell such copies unencumbered.
Recall that a derivative work is one based on a pre-existing work, yet is also considered to be a new work. Intention 3 builds on the previous two intentions, ensuring that a licensor cannot charge for the privilege to create and distribute a new work, nor impose any restrictions on derivative works.
Derivatives of a software work can rarely be created without the original work's underlying source code. Intention 4 stipulates that open source software be transparent, available as source code for no fee.
Finally, Intention 5 builds on the preceding intentions and grants the licensee the ability to mix open source software with other software. But -- more important -- Intention 5 doesn't necessitate restrictions on a user. A user can mix and match open source software with any other software.
All these intentions are affirmative and hardly bar the licensor or licensee from imposing additional terms. For example, a licensor could ask for reciprocity -- that a licensee must provide the software according to the same terms it agreed to -- and still remain open source software. A licensee can profit from the sale of the software. A licensor can provide the software under more than one license, perhaps one that is open source and one that's proprietary. Certainly, while the latter license is not an open source license, an open source license does not preclude other simultaneous licensing terms.
While it may seem shocking that there are at least 50 OSI-approved licenses, the licenses vary to suit the content, the purpose, and the needs of the licensor. (Even so, OSI has admitted that there are too many and that it hopes to reduce the number of approved licenses to perhaps six or seven.) The GNU Public License realizes that the goals of open source software licensing differently than the Apache License, but both licenses are firmly rooted in copyright (and contract) law and reach the same ends, albeit using different means.
If you intend to start an open source software project or want to release existing software under an open source license, consider the following:
- Is your work encumbered in any way? For example, is your work derived from another work? If so, what terms did you agree to as a licensee? Are you able to warrant that you have all the rights you are granting to the licensees?
- Who holds (or will hold) the copyrights in the software? Is the work (will the work be) a joint work?
- Do you want access to your licensees' improvements? If so, how do you want the reciprocity to work?
- Do you want to make money from your open source software? How?
You must consider many, many factors besides these. Depending on the scope and scale of your project, you may want to engage the services of competent legal counsel to help address all your issues.
In contrast, you may find that an existing open source license meets your project's needs. The OSI Web site has any number to choose from, and many software companies now have their own. For example, Sleepycat Software, the makers of Berkeley DB, and MySQL AB, the creators of the MySQL database, have created "dual licenses" that provide open source software to the community under generous open source license terms and for-profit software under commercial licenses to corporations for use in products and production environments.
The second article in this series (see Resources) will investigate several open source licenses and look at the benefits and obligations of each one -- necessary information whether you want to adopt some open source software in your own project or launch the next great open source project.
Learn
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Part 2 of this series explores individual licenses, such as the GNU Public License and the Apache License.
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The British Parliament's Statute of Anne was enacted April 10, 1710.
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Explore copyright laws in Title 17 of the United States Code.
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Attorney Lawrence Rosen explores the principles of copyright law and open source licenses, and discusses the specific requirements and restrictions of each of the major open source licenses in Open Source Licensing: Software Freedom and Intellectual Property Law. The book is essential reading for any development team that wants to adopt open source code or provide code to outside developers.
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Find all the information you need about the GNU Public License, Version 2.
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The Berkeley Software Distribution (BSD) license provides source code with few restrictions.
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All software produced by the Apache Software Foundation or any of its projects is licensed according to the terms of the Apache License.
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Read how Sun licenses its software as open source at Sun Microsystems' Common Development and Distribution License.
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See the Open Source Initiative's approved open source licenses.
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Check out this long list of articles about Groklaw's GNU Public License references.
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Visit the developerWorks Open source zone for extensive how-to information, tools, and project updates to help you develop with open source technologies and use them with IBM's products.
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Martin Streicher is the editor in chief of Linux Magazine. Formerly, he was an executive producer at Berkeley Systems and developed award-winning software, including the YOU DON'T KNOW JACK game and the After Dark screensaver. He earned a master's degree in computer science from Purdue University. His first job after graduate school was programming UNIX for CONVEX supercomputers.
