Open Source Code: An Intersection Between Copyright Law and the General Public License

Independent computer programmers and software developers are increasingly turning to open source code in writing new computer programs. Therefore, there is a growing need for both programmers and developers as well as companies who contract for their services and distribute their software to understand both copyright law and the GNU – General Public License (“GPL”) which governs open source code.

The Copyright Act establishes exclusive rights of creators in their works, including the right to copy, distribute, display and/or create derivative works. These exclusive rights relate to the general public, but not to parties with whom the creator may have agreements limiting those exclusive rights. In other words, the creator’s exclusive rights can be altered by a contract or license with another specific party. For example, a company may hire a software developer to create a program that will enable the company to manage its operations more efficiently. The savvy company will require the developer to sign an agreement stating that the company will retain all of the creator’s copyrights in the program. In that event, the creator may relinquish his or her exclusive rights in the work to the party that commissioned the work. It is also possible for the creator and the distributor to share rights in a commissioned work, software or otherwise.

The exclusive rights of the copyright owner (whether the creator or a distributor to which the creator has transferred exclusive rights) may also be limited by the “fair use” doctrine. For example, under the fair use doctrine it is permissible for a person to reverse engineer a software program. Once again, a contract or license can limit these rights. Therefore, it is advisable for software distributors to include a clause in their software licenses requiring the end users to waive their right to reverse engineer. Such clauses are commonly found in a so-called End User License Agreement (“EULA”) associated with originally purchased/licensed software. Be advised, however, that this waiver of rights is not applicable to strangers to the agreement. That is, if an individual obtains a copy of the program on the street, that person is bound by general copyright laws in the sense that he or she cannot copy or distribute the software, but could still reverse engineer the program under the fair use doctrine.

When programmers incorporate open source code into their software, traditional copyright laws become muddled. Under the GPL, anyone may make changes or improvements to open source software or include it in whole or as part of another program, thus creating a derivative work. However, since the derivative work contains open source software it must be distributed under the terms of the GPL. While there are several variations of the GPL, most contain requirements regarding the distribution of software, namely that (1) the software give notice that it is governed by GPL, and (2) anyone redistributing GPL software must provide a copy of the source code at no additional cost.

The GPL permits commercial distribution of GPL software and its derivatives as long as the terms of the GPL are met. While consumers could download the modified source code for free, many are willing to pay for the convenience and technical support associated with purchasing or licensing the software through a distributor. But, since the GPL is applicable to all software derived from the original open source code, companies must be diligent in verifying the origin of their software before distributing it for a fee. This means that if software containing modified open source code is sold or licensed for a fee, a copy of the modified open source code must be provided to original purchasers/licensees under a no cost license.

The enforceability of the GPL has yet to be challenged, but many of its requirements GPL are in conflict with traditional copyright law. Hence, companies that rely heavily on the use of open source code should either internally or through their legal counsel carefully monitor the latest legal developments in this evolving area of the law.

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