Software and Copyright Law

One of the meetings I attended at Boise Code Camp this year was Brad Frazer’s talk on Copyright Law as it applies to Software. This was an interesting session, at least in part because it was presented, not by a software guy, but by a lawyer, which for many, seemed to be a different take on the issue than most people are familiar with. Having followed the Open Source world for so long, and having a mind which finds Law somewhat interesting, I got the impression I was more prepared than many, but even then, it was interested to hear Mr. Frazer’s take on these issues.

The discussion began with defining Copyright. Beginning of course with the fact that Copyright, is not a verb. You don’t “copyright” something. You can “create copyright” on something, like I am as I write these words right now. You can “register” copyrights, like I would if I sent the contents of my Blog to the Federal Copyright Office. But Copyright is not a verb. And Copyright can apply in interesting ways. These words are copyrighted because I am writing them in a tangible form. However, if I was simply delivering a lecture on these issues, and not actually even writing it down, it wouldn’t, because air is not a tangible medium.

So, anytime you write a code, and commit it to a tangible medium (aka, you’re hard disk), you’re creating copyright around that material. However, who owns that Copyright? This issue is a lot less clear. Generally speaking, when I create copyright, I’m the sole holder of that copyright. Even if I create code for a client, on a for-pay arrangement, that copyright is absolutely mine (unless, of course, I’ve assigned the copyright to them). However, if I write the code for my employer, the copyright belongs to them. So, the copyright to any code I write for my current employer is automatically held by Washington State University, and I have zero claim to that copyright.

This can be tricky, becuase if I were to get a job at, say, University of Washington, doing the same things that I’ve done here at WSU, I could get my new employer in trouble for implementing code too similarly to how I’d implemented it at my old employer, because the copyright that my previous employer held on a particular method of implementing an idea. Which is another good point, copyright does not cover ideas. It only covers particular representations of ideas. So, if I develop a new algorithm, anyone can implement that algorithm as long as they don’t implement it the same way I did, and not run afoul of copyright law. If I want to protect the idea, I’d have to patent it. Please, I’m not trying to start an argument about Software Patents, I happen to dislike the current state of software patents, I’m just making a point.

What was more interesting was Frazer’s claim that if you don’t register your copyrights, you’re basically completely unable to defend them. I wasn’t sure I bought that, so I made a comment on not sure I believed that to Frazer on Twitter. He directed me to the the US Code, specifically Title 17, Chapter 4, Section 411, which basically states that if you don’t register your copyright, you’re basically unable to sue to defend it. Huh.

What’s even more strange to me is how Copyright applies to Open Source projects. Some Open Source projects, generally those which are corporately backed, do require Contributor License Agreements (CLA), which generally contains a clause which assigns your copyright to the project when you contribute to it. How many of those projects register these copyrights? I have no idea, though I’d be curious to see. However, I know that most projects never bother. When Frazer first talked about this registration thing, I got the impression that he felt that FLOSS was not defensible in court, a statement which I know to be untrue.

Frazer did also address this issue on twitter, referencing a Federal Appeals Court case Jacobsen v Katzer, which addresses the defensibility and protection of Open Source Software rather well. In short, Open Source software is defensible in court, and don’t let anyone tell your otherwise.

Copyright is a serious issue, and one which has become increasingly confusing over the last several decades. If you really think you may need to (or hell, even want to) defend a copyright in court, make sure you register it. It’s likely to be the only way you’ll ever successfully defend it.