August 2012 Archives

Clearing up a misconception about Open Source Software

Recycling emails into blog posts, yay!

Although I'm not much of a programmer, I'm a big fan of Open Source Software. Freeing source code for tinkering by random interested parties has produced a ton of awesome things I use all the time (Linux! Gimp! Libre Office! Inkscape! Audacity! Freakin' VLC, peoples!)

But there's a weird misconception about open source software (OSS) licenses that I've run into a number of times - apparently, quite a few people think that OSS licenses prohibit later users from commercially exploiting OSS code.

If my experience is anything to go by, the programmers, computer scientists, OSS advocates and other licensing junkies among you are thinking, "Wow, that's a ridiculous misunderstanding!" And many of the rest of you are thinking, "Well.. they do, don't they? How could anyone commercially exploit something that's given away for free?"

It seems to be a pretty fundamental cultural mis-communication. So if you're in the former group, consider this post just a heads-up, info-sharing, "hey, you might want to check if the people with whom you're communicating are clear on this point!" If you're in the latter group, here's a quick clarification:

There are a variety of free/libre/open source software (FLOSS) licenses. Pretty much all of the OSS licenses allow re-use of open-licensed code by third parties, but most also require that third party users must themselves make their code freely available. Apparently, many folks understand the requirement to make code available as precluding commercial use by third parties. But this is not true!

There are quite a few ways one can commercially exploit OSS code while also fully complying with the "open" requirements. One good example would be the Red Hat company. While the code of most Red Hat products is itself openly accessible and free for re-use, people give money to Red Hat for the convenience of getting a well-curated set of open source software, for the reliability ensured by the brand name, for product support, for enterprise-level solutions, and for many other reasons.

One factor that may contribute to this confusion is that Creative Commons licenses, the most common open content licenses (i.e., for freely sharing text, images, audio, video - rather than software code), have an option for licensors to indicate that they are only licensing "noncommercial" use. With the correct combination of terms, a Creative Commons license may enable free re-use for anyone except commercial users. Although there are some major differences between open source software licenses, the major OSS licenses enable free re-use for anyone including commercial users.

I'm not deeply versed in the arcana of FLOSS (or even all of the arcana of free/libre vs OSS), so if I got something wrong, please correct me in comments.

FWIW, my favorite public license remains the WTFPL. (Depending on your work environment, possibly NSFW.)

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Friday Fun: Facts, Expression, and Illustrations

There's a blank calendar grid on the wall outside my office. It's not there for scheduling.

If you can't read it, the text printed at the very bottom of the calendar grid says "Copyright © 1997 Houghton Mifflin Company. All Rights Reserved." The annotations in red marker ("HA HA HA HA HA HA !!!") are all me.

Why do I find that copyright statement so hilarious? (Other than just because I'm an enormous copyright weenie?) It's because it is absolutely, 100%, no "it depends" situation here, a completely false claim of ownership. There is NOTHING on that calendar grid that Houghton Mifflin could possibly own. However, it is also possible that with the addition of my annotations, my version of the calendar is copyrightable, to me.


In the United States, facts are not copyrightable. This comes from a piece of the copyright statute, 17 U.S.C. § 102(b), that highlights that the things that explicitly are not covered by copyright.

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Facts and data are usually understood to fit into the category of "ideas" here - and it's worth noting that the reason these things are considered un-ownable has a lot to do with both copyright's Constitutional goals of promoting progress and innovation, and with the First Amendment's guarantee against governmental limitations on speech. (If your government-granted monopoly rights in an idea prevented me from discussing it, that could be a big First Amendment problem.)

But when you add new original expression to facts or ideas, you do get something ownable. Original expression can come just from the selection and arrangements of the facts you include (sorting names in alphabetical order? Not copyrightable. Making a list of famous graduates of your high school, in order of the distance they lived from the school at the time of their graduation? Maybe copyrightable.) Original expression can also come from things we think of as more traditionally "expressive", artistic renderings of data or facts.


I sometimes ask workshop participants if the following image is copyrightable: plain line drawing of an idealized normal curve, with standard deviations

Most of the time, most participants immediately say that it is - even if we have just been talking about the fact that facts and ideas are not copyrightable. Only some of this confusion is driven by people who are unfamiliar with statistics; quite often, a person who frequently makes charts and graphs that look a whole lot like that image will be one of the big holdouts for "of course that's copyrightable!"

And that's the thing, really - when you start unpacking the concept that facts and ideas are not copyrightable, and you only get a copyright when you add original expression, you pretty quickly reach a place where you have to acknowledge that many scientific figures and other illustrations may actually not be copyrightable at all. (In fact, a court confirmed this a couple of years ago, in one of the few copyright cases I know of directly dealing with plagiarism of research figures, Ho v. Taflove. I keep meaning to write something about it, but it's so complex I always lose the thread.)

That can be a kind of uncomfortable realization, but human creativity being the joyous wonder that it is, people keep coming up with really really awesome ways to add fantastic expression to factual information. Here are just a few.

Stuffed normal curve made of fabric, with embroidered standard deviations and cute faceFrom the wonderful Nausicaa Distribution folks on Etsy. They have statistical distribution dinosaurs.

Daria Neidre's 2010 entry in the annual "Dance Your PhD" competition, "The Use of Autologous Adipose and Bone Marrow Derived Stem Cells in a Point of Care Goat Non-Instrumented Posterolateral Lumbar Spinal Fusion Model." They also have < ahref="">previous years' entries.

The thing that started me off on this whole post, was the work of an 18th-century French medical illustrator, Jacques Gamelin. A colleague who makes collage art from public domain sources introduced me to Gamelin's work. Although clearly intended to convey factual information about bones and muscles, the bodies and skeletons in Gamelin's illustrations are also extremely expressive.

four skeletons sit in various poses on large square blocks. One plays a violin, another, a cello.

See more of Gamelin's expressive factual illustrations at the National Library of Medicine.

Even though I'm sure there's copyrightable expression in Gamelin's works, there's still no copyright in 'em. Published in 1779, his works are in the public domain. Hooray!

Got any great examples of expressive factual illustrations? Add 'em in the comments!

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About this Archive

This page is an archive of entries from August 2012 listed from newest to oldest.

July 2012 is the previous archive.

September 2012 is the next archive.

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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