COPYRIGHT AND OPEN SOURCE SOFTWARE LICENSING By Chang Sau Sheong ABSTRACT Copyright and Open Source Software Licensing By Chang Sau Sheong The open source software movement has swept the software industry by storm in recent times, challenging many pre-conceptions about existing software development and licensing models. Copyright have protected software ownership and licensing of much of the closed source software in the market but how does copyright relate to open source software licensing? This dissertation describes the past and present of legal software protection and traces the history of the open source software movement from the Free Software Foundation and Open Source Initiative to the current state of the industry. The various open source licences are compared and explained. The discussion concludes with a discussion on the legal enforceability of open source licences. 2 TABLE OF CONTENTS Table of Contents................................................................................................................2 List of Tables........................................................................................................................4 Introduction .........................................................................................................................5 Copyright and Legal protection of software ..................................................................5 Historical perspectives in legal software protection ..............................................5 Copyright.......................................................................................................................6 Copying software .........................................................................................................8 Reverse engineering and making adaptations of software .................................13 Copyright laws in various countries........................................................................15 Copyright in the international context ...................................................................18 The Open Source Software Movement........................................................................22 Open Source Licences...............................................................................................24 Open source licenses matrix ....................................................................................33 Open source licenses popularity..............................................................................34 Legal Enforceability of Open Source Licenses ...........................................................35 Open source licences – copyright licence or contract?.......................................35 Copyright law in open source licences...................................................................41 Cross-jurisdictional issues in open source licences..............................................45 Conclusion..........................................................................................................................48 References...........................................................................................................................51 LIST OF TABLES Table 1 - Free and open source licence rights matrix..................................................33 Table 2 - Free and open source licence popularity in Sourceforge...........................34 4 INTRODUCTION The open source software movement has caused a large ripple in the software industry with its radical and seemingly counter-business licensing mechanism. Open source protocols and software have traditionally dominated much of what is known as the Internet, legacy from the days when the Internet was just a small collection of inter-connected networks, playground to the emerging hacker culture. This is clearly evident as most of the pre-dominant software used to operate the Internet is open source related. However, the Internet has evolved into a larger, more diverse and commercialized domain of big businesses and inevitably these social sub-cultures clash and legal issues arise as a result. This dissertation investigates the various aspects of open source software licensing, and examines the relationship between legal software protection, the laws that have been created to legislate software licensing, and open source software licences. This dissertation also investigates the enforceability of open source licences. COPYRIGHT AND LEGAL PROTECTION OF SOFTWARE Historical perspectives in legal software protection Technology often advances faster than legal procedures that legislates the technology, and legal software protection is a prime example. Legal software protection falls under the umbrella category of intellectual property law, an area of law that deals with the legal rights associated with property that is intangible. Protection mechanisms that come under this category includes copyright, patents, trademarks and others which are often not related to each other beyond being under the same group of property rights. Along with software intellectual 5 property laws covers a wide range of non-tangible assets such as literary and artistic works, designs, marks used by traders and even commercial goodwill. Historically, the first form of intellectual property protection explicitly granted to software was patent. Applied Data Research (ADR) was to be the first company granted a software patent of commercial importance in 1968. However the practice of patenting software stopped in the 1970s as the courts and patent offices frowned on using patents to protect software. The European Patent Convention (1973) went as far as to exclude software from patentability in Europe. At the same time, copyright gained gradual acceptance as the main means of legal software protection. In 1978, the US National Commission on New Technological Uses of Copyrighted Works (CONTU) recommended to apply only copyright to software protection. The US eventually became the first country to legislate software copyright protection in the Software Copyright Act in 1980. Copyright Copyright, is “the protection of works of artists and authors giving them exclusive rights to publish their works or determine who may so publish”1. It is a property right that protects certain types of works including original literary and artistic works, films and sound recordings, and typographical arrangement of published editions. Software is protected by copyright as a form of literary work. In some literature, depending on the period it is mentioned and the context it is mentioned in, software is also referred to as computer programs or computer 1 Barron’s Law Dictionary 6 software or the works. In this dissertation, all these terms are considered to mean the same thing. Although copyright law is not uniform globally (intellectual property rights are territorial), there are common features that have been adopted as a result of international treaties and agreements. These provide copyright owners a number of rights relating to certain acts that be performed on the works protected by copyright: • The right to copy the work and to issue copies • The right to rent or lend the work • The right to perform, show or play the work in public • The right to broadcast the work • The right to make a derivation of work and do any of the above in relation to such derivation These are acts that are restricted by copyright, and anyone who does any of these acts without the permission or licence of the copyright owner, infringes copyright, barring any defensible exceptions. In relation to software, the relevant rights restricted by copyright are mostly the right to copy, the right to issue copies (distributing) and the right to derive other works from the original work (adapting or modifying). However, copyright does not control how software is used, only how it is copied, modified or distributed. It is not the act of using the software but copying, distributing or adapting it that causes copyright to be infringed. Copyright was traditionally used to protect artistic, dramatic and literary works. These are the expressions of the creativity and intellectual efforts of the authors. 7 Copyright was modified and adapted to be used for software, and was not even the recommended means of legal protection by the World Intellectual Property Organization (WIPO). In 1978, WIPO drafted a model law based on a sui generis approach that is neither copyright nor patent, but was later abandoned in preference for copyright. However, copyright was never meant to protect concepts and ideas, which was the domain of patent protection. As a result, two important issues that challenged copyright as a means of legal software protection are: whether non-literal elements of software such as interfaces or program structures are copyrightable, and whether reverse engineering is permissible, neither of which were answerable or meaningful in previously existing copyright laws. Copying software Infringing copyright with literal copying As with any other literary work, the copyright in software is infringed when a copy of it or a substantial part of it is made without the copyright owner’s permission. One of the early cases of UK software infringement in which the software was copied was Total Information Processing Systems Ltd v Daman Ltd2. In this case the court decided that because a part of the software did not provide executable code, it was not a substantial part of the software and therefore copyright was not infringed. This decision