Copyright & Software

Franklin M. Siler, Esq.@franksiler

785.813.1828

(require ‘disclaimer)

I’m a lawyer, but not your lawyer.

This presentation is for informational purposes

only.

Licensing forthese slides

Who cares about copyright?

You should care because your decisions influence such factors as: How others can legally use your software If your own projects become “infected” by a

license you didn’t choose Whether you must distribute source code if you

distribute or even use software to serve up content

How others can use your photos on Flickr and other sources

Understanding how Wikipedia and other open references work

Whether you get sued for a LOT of money.

Not covered here….

The many flavors of patents

Trademarks

Trade Secrets

Contract law

Cat videos

How much is a lot?

See the TED talk entitled “The $8 Billion iPod”.

Theoretically, up to $150,000 per instance.

Jurisdiction matters

This talk is focused around the United States. Within the U.S., copyright law is consistent between states because it is federal law and cannot generally be modified by the states.

In fact, copyright law is relatively consistent worldwide because of the multitude of treaties concerning it, though some countries are more selective about enforcement than others.

However, other types of “intellectual property”, such as trade secrets, may vary from state to state in the U.S.

What is Copyright?

Federal law, with a lot of influence from international treaties (Universal Copyright Convention, Geneva Phonograms Convention, Berne Convention, WTO Agreement, WIPO Copyright Treaty, WIPO Performances and Phonograms Treaty)

Authority for Congress to regulate is spelled out in the Constitution

What you need for Copyright

A literary, musical, dramatic, pantomime, choreographic, pictorial, graphic, sculptural, motion picture, audiovisual, sound recording, or architectural work

The work must be in a “fixed medium”

Source code qualifies

17 USC §117 outlines special rights for software rights holders

What is a license?

Most generally, permission to do something: e.g. practice law, drive a car, or operate an amateur radio station

Copyright licenses are more or less promises not to sue, although there isn’t a terribly clear line drawn between what constitutes a copyright license and what constitutes a contract (most commonly an adhesion contract).

The difference is slightly technical but has impact on such factors as whether mandatory arbitration might apply

Closed Licensing

“All Rights Reserved”

So-called “Shrink wrap agreements”- putatively an adhesion contract, mostly untested in court, generally not very user-friendly

You can think of most websites as being closed in terms of licensing; even if the content is free, NYT doesn’t want you running off with their stuff

Fair Use

The essential idea is that while the copyright holder usually has broad control over the work, there are exceptions to that exclusivity for public policy reasons

17 USC §107- it’s a question of fact and can be very difficult to work out in a particular case

Generally, okay to use parts of works reasonably necessary for personal use, for reporting news, or for education

A bit of history

AT&T UNIX BSD

Stallman, aka rms (emacs, GNU, Lisp) vs Bill Joy (vi, Sun, C)- key figure in BSD

West coast vs. East coast

Non-viral licensing

Does not contaminate the code your working on, e.g. BSD and MIT licenses

I think it’s fair to say that most licenses are non-viral

Viral Licenses

GPL: if you modify code and wish to distribute, you must distribute the source as well

LGPL: slightly less restrictive; meant for libraries

AGPL: more restrictive, bunch of interesting provisions related to DMCA/modern treaties, designed for network server software

Viral Licenses

Keep in mind that viral licensing only works because of the way the law gives rightsholders exclusivity

If the law wasn’t restrictive, they couldn’t write such an onerously “free” license

Derivative Works

17 USC §101: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Open Hardware

The Arduino- an interesting hybrid of licensing

Newer Licenses are more visual

“Non-Commercial”

In order to qualify as “open hardware”, you must allow commercial use. The idea is to encourage vendor support and allow tinkering without fussing too much over what is commercial or not

Ultimately, what is and is not commercial in nature is a question of fact and may be very difficult to determine.

“Best Practice” is probably to stay away from these licenses, although I’m not practicing what I’m preaching- you may have noticed that these slides are licensed for non-commercial use only.

Choosing a license

BSD, MIT, GPL, CC….what does it all mean?

Short answer: not that important if you are choosing.

There are a lot of licenses out there, but if you are interested in licensing your project openly, I recommend OSI-approved licenses.

Opensource.org

Questions?Slides will be posted at

franksiler.com