Tuesday, December 20, 2016

IP Considerations for Releasing OSS (part 1 of 3)

The decision to release software under an open source license has some nuances requiring careful consideration to ensure desired goals are achieved.  For purposes of this discussion, I will be approaching the question from the perspective of releasing an original work, though the same considerations apply when contemplating contribution to an existing community project with an established license and contributor policy.

The first concept to understand is that software is the result of an intellectual endeavor resulting in the creation of both:
  • intellectual property rights
  • rights to control copies of IP and any resulting distribution through any medium 
It is important to realize the original creator (or their employer) has the right to separately license one or both types of property rights to as many different parties as desired.

An organization considering publication under an open source license has multiple options to choose from varying by type and degree of IP protection.  OSS allows and in fact encourages very liberal downstream distribution by nature so I will focus this series of posts on basic IP rights and related factors which should influence an OSS publication decision.

Copyrights.  Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device ... (17 U.S.C. § 102.)

Even the simplest of OSS licenses tend to adequately provide for the reservation of copyright to the creator.  But an OSS publisher should understand that many exclusive rights accruing to a copyright owner are immediately licensed to an OSS consumer under most OSS choices:
  1. right to make copies
  2. right to prepare derivative works
  3. right to distribute original or derivative works
It is probably best to think of an OSS license scheme as preserving basic copyright protection while actively encouraging the easiest path to wide dissemination and adoption within target user groups.  Given this generalization, the specific OSS license chosen will then often influence the level of downstream adoption, contribution and further development by an active user community.

Next up, Patent considerations.

Please see these sources for a more in-depth discussion of these topics.

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