About Law

"Intellectual Property" (so-called)

The Law channel is concerned with all forms of interaction between open source and the legal system, but it focuses primarily on what lawyers have traditionally (well, since the late 1960s, anyway) called "intellectual property." This term is at best confusing to non-lawyers and has been severely (and, we think, justifiably) criticized by many in the free software and open source community. We cringe when we see or hear it. However, it is, at least for now, a widely used term in legal and business culture, which covers the disparate areas of law that happen to be most typically relevant to open source.  Indeed, one can regard open source generally as embodying a strong critique of traditional intellectual property law. We will use the term "intellectual property" in this article, but we will otherwise try to avoid using it on opensource.com.

The term intellectual property most often is used to refer collectively to four legal concepts: copyrights, patents, trademarks and trade secrets. The law pertaining to these subjects is mostly local--that is, it differs from country to country, though in many respects there has been significant international harmonization.


Copyright is, of course, the type of "intellectual property" right most fundamental to open source software. Without it, the GPL wouldn't work, though without it we're not sure the GPL would even be necessary. Enforcing a copyright basically means that you're stopping others from copying your work.


Patents are for "inventions." We use that word very loosely, but not as loosely as the Patent Office does when it grants them on software. Although the conventional wisdom is that you can't get a patent on an idea or mathematical algorithm, and for years you couldn't get a patent on software, today software patents are a costly hindrance to innovation. But that could change.


How you identify which bottle to pick up at the grocery store, so you get the tomato juice that's not too salty for your taste instead of the other one that is. Everything has a trademark. Really.

Trade secrets

The secrets you use in your business that you think give you an advantage over the next guy who doesn't have them. It could be your secret recipe or your customer list, really, about the only limitation is that it's secret. Proprietary software companies like to have their code kept a trade secret, which is why they only give you the binary and the Copyright Office gives them ways to register the copyright without disclosing any of the source code. Distribution of open source software is fundamentally inconsistent with the idea of trade secret "protection" (yes, that's a propaganda term), though open source licenses all permit internal, non-publicly-used trade secret modifications.