This is part 2 in my three-part series on copyright law and software licensing. Part 1 covered the basics of copyright law. With the background knowledge from that post, we are ready to tackle software licensing in more depth. After this, continue onto Part 3 of the series.

Licensing In General

A license is permission granted by a copyright holder to others to reproduce or distribute a work. It is a means to allow others to have some rights when it comes to using a work without assigning the copyright to others.

For example, although I own exclusive copyright to this very blog post, at the bottom of every page in my blog I provide a license to freely copy, distribute, display, and perform the work. I also allow making derivative works and commercial use of the work under a Creative Commons license. Gee what a nice guy I am! However I do stipulate one restriction. Anyone who wishes to exercise one of the listed rights within the license must attribute the work to me and make clear to others the license terms for the work. As the copyright holder, I am free to grant others these rights, but also to add restrictions as well.

Proprietary and Closed Source Licenses

Copyright law and licensing applies to software every bit as much as it does to writing. Most of the software that the average person uses day to day falls under a proprietary license. That is, the user is not free to distribute the software to others. This is often called “closed source” software, but that term may be slightly misleading as software can have its source code visible, but still not allow open distribution. Likewise, it is possible for closed-source software to allow others to freely distribute it as in the case of many free utilities.

Open Source and Free Software Licenses

This leads us finally to “Open Source Software” and “Free Software”. The two terms are often used interchangeably, but there is a slight distinction. The term “Free Software” tends to apply to software licensed in such a way that any code that makes use of the free software code must itself be freely available. The “free” in “Free Software” applies to the freedom to view the code.

Whereas “Open Source” is a more blanket term that merely applies to software in which the source code is visible and freely distributed. Open Source software does not necessarily require that its usage also be Open Source. Thus Free Software is Open Source, but Open Source is not necessarily Free Software.

Types of Open Source Licenses

When starting an open source project, the copyright owner is free to license the source code to others in any manner he or she sees fit. But the cost to draft a custom open source license is prohibitive. And to do so oneself is often a big mistake, especially given the fact that there are many well established licenses in existence that have stood the test of time.

Choosing A License

The Fogel book does a decent job of providing insight into how to choose a license, so I won’t delve into it too deeply.


Despite the plethora of licenses, in general the one you choose will be a result of your philosophical disposition towards open source software. If you fall under the free software camp and believe that all software should be free, then you may gravitate towards The GNU General Public License (GPL).

The GPL is designed to guarantee the user’s freedom to share and change the software licensed under its terms. When using GPL code, no additional restrictions may be applied to resulting product. In this way, the GPL is similar to the Borg. If you wish to use GPL code within your own project, then your own project must be licensed in a compatible manner with GPL. Thus GPL code tends to begat more GPL code. It is not permissible under the GPL to use GPL in proprietary software while keeping that software closed source.

MIT and BSD Licenses

For others with no philosophical objection to using open source software within proprietary software, the MIT license or the new BSD license may be more appropriate.

In essence, these licenses do not provide any restrictions on how the software may be copied, modified, or incorporated into other projects apart from attribution. Thus you can take code from a BSD licensed project and incorporate it into your proprietary software. You can even try to sell BSD licensed software as is (technically you can do this with GPL too), but this is as difficult as selling ice to Eskimos. Because you cannot restrict others from simply obtaining the source code, selling open source licensed software as is makes for a difficult proposition. You had better add a lot of value to be successful. Popular .NET projects such as Subtext, DasBlog, and RSS Bandit are all licensed under the BSD license.

UPDATE 2013/07/17: GitHub recently created a site to help folks unfamiliar with licensing make an informed choice. It’s called and worth checking out.

Stay Tuned for Part 3.