I was asked a question in my law class: is it possible for open source software to exist without copyright protection?

  • In the absence of copyright, could software still exist that satisfied the open source definition and/or the four freedoms? Would existing open source licenses still work in a copyright-free world?
  • Alternatively, would the absence of copyright make all software functionally satisfy the open source definition (or at least make it much harder not to satisfy the definition)? Could proprietary software still exist?
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    Open source works with the copyright law, spelling out what the author allows among the many things copyright law reserves to the author. In contrast, propietary software and books ask you to pay for the privilege of getting a copy. In today's laws view, as soon as you write something, you automatically own it's copyright. – vonbrand Apr 5 '16 at 23:14
  • @ArtOfCode I edited the post to contain some specific questions. (devon king: I hope I managed to capture your original intent with my edits. If you are not satisfied with my edits, please edit the post further.) – apsillers Apr 6 '16 at 12:20
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    consider posting to worldbuilding.stackexchange.com ? (I am not joking) – d3vid Apr 6 '16 at 14:40
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    @curiousdannii The question really being asked here is "How exactly does open source rely on copyright?" (It's merely being asked from a negative perspective -- what would happen in the absence of copyright?) And: "Also, if copyright were to disappear (or, in a strictly non-hypothetical sense, expire) on a proprietary binaries, would it then satisfy the open source definition?" Shall I edit it again so that's the literal text of the question? – apsillers Apr 7 '16 at 13:35
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    @curiousdannii Edited; I didn't use the exact quotes from my comment but I hope I'd made it less hypothetical. – apsillers Apr 7 '16 at 13:43

Open source licenses operate by licensing the rights that exist under copyright. If those rights did not exist (just as they cease to do when a copyright expires), then any terms imposed by the license are moot: recipients of the work can do largely whatever they please with it, because there are no copyright rules telling them they can't. This is mildly crippling to permissive licenses (they can no longer require attribution, but otherwise they were giving most rights away anyway) and massively crippling to copyleft licenses, since they derive their power from the default restrictions of copyright.

So, open source licenses couldn't exist (because there's no copyright rights to license), but software could still satisfy (or fail to satisfy) the definition of open source. The bulk of the Open Source Definition specifies what permissions must exist on open source software:

  • "The license shall not restrict any party from selling or giving away the software..."
  • "The license must allow modifications and derived works..."
  • "The license must not discriminate against any person..."

Since the loss of copyright means the loss of ability to impose restrictions via licensing, all of these permissions naturally exist in the absence of copyright. But that doesn't mean that all software is suddenly open source. You need to satisfy the critical second requirement: source code! If an author releases a binary but doesn't publish their source code, then the binary can be freely distributed, but the lack of copyright does not force the author to release their source code. If they choose not to release their source code, then obviously their work is not open source.

Note that patents would still be relevant in a post-copyright world, so licenses that include a patent grant (such as the Apache License) would still be relevant in that regard.

  • It's important to note that some if not all open source licenses are "contagious" in that derived works inherit the licence and its associated obligations. – James P. Jun 8 '16 at 20:03

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