Copyright in Open Source Software - Understanding the Boundaries

Abstract

Copyright ownership tends not to be an issue in closed-source, software development.  In that model an individual or business owns - or in-licenses - the copyright in all of the code used in the software application, licenses it to end-users under a binary-only license, and relies on a combination of copyright and trade secret law to enforce contractual rights in the code.  By contrast, when software is developed in an open source model, copyright issues abound, and many of these copyright issues are not well understood by software developers.  This lack of understanding can undermine the intent of the developers and can potentially lead to unattractive outcomes.  As early as the launch of conceptual design in open source software, issues can arise as to ownership of the work and its progeny.  When a wide range of hands can touch the open source code, ownership and rights in the code can become blurred.  Moreover, not all code contributions to an open source project will be protected by copyright.  This paper seeks to explore the application of U.S. copyright law to software, and particularly software that is developed and licensed under an open source model.  We address the boundaries of copyright protection and ownership, the importance of intent, timing and creative expression in determining these boundaries, and provide guidance to those looking to launch open source projects.