by Joseph D. Poole
In the last fifty years, with ever increasing speed, computers have changed the way we do business, listen to music, watch television, interact with each other socially, and the way we look at the world in general. At the core of this technology is code or software that tells ever more complex machines to do ever more complex things. The reason this complexity continues to increase is that none of this code is created in a vacuum.
In some cases, the code is so rudimentary that it is not protectable by copyright or patent. However, just as a word or phrase is not subject to copyright, but a book or even an article in a magazine is, so too is more advanced software protected by intellectual property rights. But just as books are made of smaller chunks (i.e. words and sentences that individually may not be protected), code is often based on the code that came before it. The major difference is that code is (far more so than a book) comprised of mathematic formulas. It is more analogous to compare code to contracts, in which the language has a functional purpose.
As programs exponentially grew in complexity over the years, it was not feasible to recreate every aspect of code from binary or basic. “Reinventing the wheel,” as it were, was just as unrealistic and impractical in the programming sense as it is in the legal sense. Thus, programmers sought ways to legitimately use libraries of code created by themselves and others and to share those libraries. In some cases, this was done within a single company, but as start-up software companies rose and fell, libraries that would survive the dangerous life cycle of the turbulent dotcom/dotbomb era were required. Software developers and designers also saw the advantages of efficient bug detection via software libraries, adhering to the mantra that “given enough eyeballs, all bugs are shallow.”
Enter the open source movement: Software for everyone! However, authors of code generally do not want to give away all of their copyright to their works; they merely want to give others access to their works, and they use licenses to do so. The term “open source software” is generally used for any source code made available via license to study, change, and distribute the software at no cost to anyone and for any purpose.
There are many licenses that fall within that definition. Not all of these licenses are created equally however. The largest variance between them is the degree to which they practice “copyleft” as opposed to “permissive” principles. “Copyleft” is a term used to describe the requirement that “if changes are made to a program’s code, and the changed program is distributed outside an organization, the source code containing the changes must likewise be distributed.” Permissive licenses do not require the modified source code to be distributed or contributed back to the open-source community. Below is a discussion of some of the more common open source licenses, and how the code and the content contained in certain programs are treated differently.
OPEN SOURCE LICENSES
The most common open source licenses that this article will be examining are GPL, LGPL, BSD, Apache, and MIT. GPL is the most “copyleft,” followed by LGPL, but the others are far more permissive. Until recently, GPL was the most widely used open-source license. However, that is changing and now the open-source community has shifted largely to permissive licenses. The most popular community open source projects in recent years have used permissive licenses. Whether “copyleft” or permissive, open-source licensing does require proper attribution (showing where the code came from). How that attribution must occur depends on the license.
- GNU General Public License (“GPL”)/AGPL GPL is a “viral” license in that any source code that interacts with code distributed under a GPL license must similarly be distributed under a GPL license. A developer can copy, modify, distribute, and even sell the code. However, as they are required to offer the code for free and clearly display the GPL license permitting others to use the code for free, it is unlikely that a developer under a GPL license would ever receive an asking price for the code itself. One way around this is to distribute the GPL licensed software as a service. Affero GPL or AGPL is a variation of GPL designed to shore up this loophole, making it even more “copyleft” than GPL licenses.
- GNU Lesser General Public License (“LGPL”) LGPL is usually used for software libraries. The software that uses the libraries does not need to be redistributed under the GPL or LGPL licenses, however, any changes to the software of the libraries themselves must be released under and LGPL license. This license is a key shift from the strict “copyleft” licenses AGPL and GPL to something that developers can use on commercial projects without being forced to distribute the source code of those projects under GPL licenses.
- BSD Licesnes BSD covers a family of permissive open-source licenses, but two stand out: the New BSD License/Modified BSD License, and the Simplified BSD License/FreeBSD License. Both allow developers to use the source code and distribute it without requiring them to distribute the underlying source code. The main difference between the New BSD License and the Simplified BSD License is where the attribution must occur. Both require attribution in the source code files and the documentation for the program, but the New BSD License restricts the use of contributors’ names for endorsement of the derived work without the contributors’ specific provision, and the Simplified BSD license does not. There is also a four clause BSD license that requires attribution in all marketing materials of the program (including every ad and commercial), but that license is no longer widely used.
- Apache Licenses Apache licenses are used in such open-source license projects as OpenStack, Hadoop, and Android. They are not as simple as BSD, and cover many terms that simpler licenses do not. For example, Apache licenses clearly identify a term and territory (perpetual and worldwide), identify use of the code as fee and royalty free, notify that the license is non-exclusive, and that the grant is irrevocable. Furthermore, Apache licenses attempt to address certain patent issues that other licenses do not.
- MIT License The MIT license, by contrast, is one of the shortest licenses, and consequently one of the broadest. It is used in such open-source projects as JQuery, Hudson/Jenkins, and nodejs. Essentially, as long as you give proper attribution, you can use MIT licensed code for whatever you want. This makes it a very easy license to use for developers who want to contribute code that can be used on commercial projects.
Open-source licenses are designed to address code, not media. Images, sound, and animation would not be able to properly handle the attributions required under open-source licensing. However, there are many communities that share the same open-source spirit in desiring to share their creative works with others for their use. The Creative Commons (“CC”) thus offers a variety of licenses specifically designed to allow creators to allow their creative works to be used by others. Generally all CC licenses require attribution. Additionally, there are three factors that can be modified, depending on the rights a creator wants to grant or restrict:
- Share Alike. A work with a “Share Alike” CC license allows for modification of the work and the creation of derivatives, but those derivative works must be licensed under the same license. This is a viral license that follows the work and its derivatives, akin to the “copyleft” licenses discussed above. However, as CC licenses are modular, Share Alike does not in and of itself prevent commercial use.
- Non-Commercial. A work with this restriction cannot be used for commercial purposes. The CC have attempted to define what a non-commercial use is, identifying commercial uses as those that are “primarily intended for or directed toward commercial advantage or private monetary compensation.” There is also a report published by the CC to help clarify what does and what does not count as commercial.
- No Derivative Works. This restriction prevents subsequent users from modifying, remixing, tweaking, or otherwise changing the work. If a creator is concerned that their work could be misused, then this restriction makes sense. Share Alike and No Derivative Works are mutually exclusive restrictions, as Share Alike applies exclusively to derivative works.
CC licenses are not designed for software, and generally should not be used for software. However, they do provide plain English and full legal versions of their licenses which allows them to be easily used and understood. This makes them very useful for the collaborative creative projects that have been taking the new media sphere by storm. For those who want to combine creative works and coding, proper use of creative commons licenses separate from the open-source licenses for the underlying code should allow creators to properly protect or distribute their works as they see fit.
 See 17 U.S.C. § 102 (defining copyrightable subject matter); 35 U.S.C. §§ 101-103 (defining patentable subject matter as something novel, useful, and non-obvious); see also In re Comiskey, 499 F.3d 1365, 1376-77 (Fed. Cir. 2007) (identifying abstract ideas as non-patentable subject matter).
 The equations that make up a section of code have a specific purpose, just as legal language does. The major difference is that altering the terms of a contract is part of the nature of contract drafting (via varying levels of negotiations between two parties), whereas altering code is not as natural; code is often created by a single programmer or team with a common purpose.
 Raymond, Eric S., The Cathedral and the Bazaar 30 (1999) (“Linus Law”).
 St. Laurent, Andrew M. Understanding Open Source and Free Software Licensing 4 (O’Reilly Media 2008).
 See Cameron Chapman, A Short Guide to Open-Source and Similar Licenses, Smashing Magazine (March 24, 2010).
Joseph D. Poole is a Los Angeles based attorney working in the areas of intellectual property law and entertainment law.