BY: BECKY STOCKEL

We were always taught to share.  We learn from sharing our ideas, and by working together, we are better able to develop the new technologies that shape our world.  Patent and copyright law exist with the Constitutional goal of “promot[ing] the Progress of Science and the Useful Arts.”[1]

Patent law accomplishes this goal by giving a limited monopoly in exchange for complete disclosure of the workings of an invention.  In doing this, the inventor’s rights are protected in that no one else can duplicate his exact model or profit from it for twenty years.  However, other inventors are permitted to use the patented invention in creating a new invention, as long as the resulting new inventions are “new and useful improvements thereof.”[2]

By requiring these improvements to be truly novel[3] and non-obvious,[4] this short-term monopoly actually drives competition.  It encourages a sense of collaboration for the sake of improvement and progression, rather than requiring each inventor to start “from scratch” so to speak.

In the Digital Age, some of the most important and exciting inventions involve written programs, implicating copyright laws.  Copyright, however, does not provide the same incentives.  Copyright provides exclusive rights to the owner of “works of authorship fixed in any tangible medium of expression[5]” to reproduce the work in whole or in part, create derivative works, or distribute copies.[6]

Exclusive rights held by a copyright owner thereby hinder the improvement of existing digital inventions when the underlying source code is proprietary in nature.  Open source coding and “copyleft” licenses, however, support this idea.  The way “copyleft” works is by allowing original programmers to create new code, and rather than keeping their exclusive rights – or by going to the other extreme of completely releasing the work into the public domain – they license it to other users.

The terms of these licenses, such as the GNU licenses,[7] allow a work to be wholly copied or modified, as long as whatever work it is then integrated into includes in it’s copyright statement or licensing agreements the same terms.  Under these terms, open-source or copylefted code is free to use by any developer anywhere, as long as the new software is also open-source and contains the same copyleft provisions within the source code.[8] This “viral” method of coding enables software developers to create new works that improve on existing code much like patent law enables inventors to improve on existing inventions, and, at least in the world of software copyrights, better “promotes the Progress of Science and the Useful Arts.”[9]

It is important to note that copyleft licensing agreements do not subvert copyright law.  In fact, they depend on copyright law for support.  If a developer wanted to write source code that anyone could use, regardless of how or whether they shared their work with others, she could simply deposit that work into the Public Domain.

The idea behind open source is to create a viral coding experience, by which a community of developers can, together, improve code until it most efficiently meets the needs of the end user, and do so in a way that incorporates the end user as beta tester and allows the testers to provide input as the source code is evolving.  Essentially, this method of requiring open-source users to create only open-source derivative or modified works through licenses gives the original source author, under copyright law, the ability to prevent others from using their source code to create proprietary software.