Anything that is not public domain has a copyright, possibly
more than one. Under U.S. federal law, the authors of a work hold
copyright even if there is no copyright notice.
Who counts as an author under copyright law can be complicated,
especially for software that has been worked on by many hands. This
is why licenses are important. They can authorize uses of code in
ways that would be otherwise impermissible under copyright law and,
drafted appropriately, can protect users from arbitrary actions by the
copyright holders.
In the proprietary software world, the license terms are designed to
protect the copyright. They're a way of granting a few rights to
users while reserving as much legal territory as possible for the
owner (the copyright holder). The copyright holder is very
important, and the license logic so restrictive that the exact
technicalities of the license terms are usually unimportant.
As will be seen below, the copyright holder typically uses the
copyright to protect the license, which makes the code freely
available under terms he intends to perpetuate
indefinitely. Otherwise, only a few rights are reserved and most
choices pass to the user. In particular, the copyright holder cannot
change the terms on a copy you already have. Therefore, in open-source
software the copyright holder is almost irrelevant — but the
license terms are very important.
Normally the copyright holder of a project is the current
project leader or sponsoring organization. Transfer of the project to
a new leader is often signaled by changing the copyright holder.
However, this is not a hard and fast rule; many open-source projects
have multiple copyright holders, and there is no instance on record of
this leading to legal problems. Some projects choose to assign
copyright to the Free Software Foundation, on the theory that it has
an interest in defending open source and lawyers available to do
it.
For licensing purposes, we can distinguish several different
kinds of rights that a license may convey. There are rights to copy and
redistribute, rights to use, rights to modify for personal use, and
rights to redistribute modified copies. A license may restrict or
attach conditions to any of these rights.
The Open Source
Definition is the result of a great deal of thought about what
makes software “open source” or (in older terminology)
“free”. It is widely accepted in the open-source
community as an articulation of the social contract among open-source
developers. Its constraints on licensing impose the following
requirements:
-
An unlimited right to copy be granted.
-
An unlimited right to redistribute in unmodified form be granted.
-
An unlimited right to modify for personal use be granted.
The guidelines prohibit restrictions on redistribution of
modified binaries; this meets the needs of software distributors, who
need to be able to ship working code without encumbrance. It allows
authors to require that modified sources be redistributed as pristine
sources plus patches, thus establishing the author's intentions and an
“audit trail” of any changes by others.
The OSD is the legal definition of the “OSI Certified Open
Source” certification mark, and as good a definition of
“free software” as anyone has ever come up with. All of
the standard licenses (MIT,
BSD, Artistic, GPL/LGPL,
and MPL) meet it (though some, like GPL, have other restrictions which
you should understand before choosing it).
Note that licenses that allow only noncommercial use do not
qualify as open-source licenses, even if they are based on GPL or some
other standard license. Such licenses discriminate against particular
occupations, persons, and groups, a practice which the OSD's Clause 5
explicitly forbids.
Clause 5 was written after years of painful experience.
No-commercial-use licenses turn out to have the problem that there is
no bright-line legal test for what sort of redistribution qualifies as
‘commercial’. Selling the software as a product
qualifies, certainly. But what if it were distributed at a nominal
price of zero in conjunction with other software or data, and a price
is charged for the whole collection? Would it make a difference
whether the software were essential to the function of the whole
collection?
Nobody knows. The very fact that no-commercial-use licenses
create uncertainty about a redistributor's legal exposure is a serious
strike against them. One of the objectives of the OSD is to ensure
that people in the distribution chain of OSD-conforming software do
not need to consult with intellectual-property lawyers
to know what their rights are. OSD forbids complicated restrictions
against persons, groups, and occupations partly so that people
dealing with collections of software will not face a combinatorial
explosion of slightly differing (and perhaps conflicting) restrictions
on what they can do with it.
This concern is not hypothetical, either. One important part of
the open-source distribution chain is CD-ROM distributors who
aggregate it in useful collections ranging from simple anthology
CDs up to bootable operating systems. Restrictions that would make life
prohibitively complicated for CD-ROM distributors, or others trying to
spread open-source software commercially, have to be forbidden.
On the other hand, the OSD has nothing to say about the laws of
your jurisdiction. Some countries have laws against exporting certain
restricted technologies to named ‘rogue states’. The OSD
cannot negate those, it only says that licensors may not add
restrictions of their own.
