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® -
Copyright (c) 2002-2005
by Perpetual Motion Interactive Systems Inc. 
( )

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). By default, when you contribute source code to an open source project, you are agreeing to license the code under the terms of that project, but you still retain the copyright.

In some cases, this is fine. But it makes it difficult for the project should they decide they want to relicense or dual-license the project as they have to get permission from every copyright holder. Or if there is need to enforce the copyright, the project would need every affected copyright holder to be involved.

What many projects do is require that contributors assign copyright to a single legal entity or person which then has the power to enforce the copyright without requiring everybody get involved. Keep in mind that although this person or entity 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 occurred.

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.

Public Domain

This section added in 2013/07/17

Another possibility that I did not originally cover is to have nobody own the copyright by dedicating a work to the public domain. This effectively surrenders any rights to the code and gives the code to the public to do with it as they wish.

In some regards, dedicating a work to the public domain is unusual. Typically, works in the public domain have had their copyright expired or were inapplicable (such as government works). As Wikipedia points out:

Few if any legal systems have a process for reliably donating works to the public domain. They may even prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights.

The Unlicense template is one approach to dedicating a work to the public domain while serving as a fallback “license” for legal systems that don’t recognize public domain. The CC0 license from Creative Commons is another such effort.