This is part 3 in this series on copyright law and open source licensing. If you haven’t already, consider reading Part 1 and Part 2 of this series for background before tackling this topic.
To properly license open source source code, the license agreement must be included prominently with the source code. Many simply put a license.txt file in the root of the source tree and publish the license on their project website. Others take the extra step to include the license text in a comment within every source file.
Take a look at the license for DotNetNuke (DNN), a very popular open source portal software for the .NET platform. In particular note the very first section:
DotNetNuke® - http://www.dotnetnuke.com
Copyright (c) 2002-2005
by Perpetual Motion Interactive Systems Inc. ( http://www.perpetualmotion.ca )
Notice that Perpetual Motion Interactive Systems Inc. owns the copywrite to the DotNetNuke codebase. “How can that be? How can a corporation own the copyright to code that is open source?” you might ask. Don’t worry, there is nothing sinister going on here.
In part 1 of this series I stated that when you write code, you own the copyright to it (with a couple of exceptions such as work for hire). However, imagine the logistical and legal nightmare if everyone retained the copyright to code contributed to an open source project, especially if some decided to choose their own compatible license. The source code would be littered with copyright statements and license files for every contributor.
Instead, it is usually the policy for an open source project to assign copyright to a single legal entity or person. Keep in mind that although this person then owns the copyright, the code has been released under a license that allows free distribution. Thus the fact that the copyright has been assigned to an individual entity does not make the code any less open.
For example, suppose Perpetual Motion decides they want to exercise their copyright and make a proprietary version of DotNetNuke. They certainly have the right to do so, but they cannot stop others from freely viewing and distributing the code under the pre-existing license up to the point at which they close the source. At that point, contributors would be free to fork the project and continue development under the original license as if nothing had occured.
Copyright Assignment Policy
According to a lawyer Fogel talked with...
For most, simply getting an informal statement from a contributor on the public list is enough—something to the effect of “I hereby assign copyright in this code to the project, to be licensed under the same terms as the rest of the code.”
Is sufficient. Some organizations such as the Free Software Foundation, on the other hand, apply a very formal process requiring users to sign and mail in paperwork.
In any case, some open source projects do not have such a copyright assignment policy in place, but it makes sense to do so. As Fogel points out, should the terms of the copyright need to be defended, it is much easier for a single entity to do so rather than relying on the cooperation of the entire group of contributors, who may or may not be available.
Having the copyright assigned to a corporation also protects individual developers from exposure to liability in the case of a copyright infringement suit.