Original Works of Authorship

Open source software always starts with one or more original authors and their original works of authorship. Copyright law describes an original work in the following broad terms:

Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.... (17 U.S.C. § 102.)

Understanding this statute may be easier if you initially broaden your perspective beyond computer software. An original work of authorship can be many things, including literary works; musical works; dramatic works; pantomimes and chor-eographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Here's one example: The tune that Windows plays when it first loads is copyrightable. The author of that tune (or the author's employer) owns the copyright. The fact that it is computer software that communicates that tune through your computer speakers is irrelevant. The fact that the musical score resides not on sheet music in your piano bench but as bits and bytes on your computer disk is irrelevant. Any original work of authorship, including that ubiquitous tune announcing the start of Windows, is copyrightable.

The source code that defines a computer program is copyrightable, as is the translated object code that actually executes on the computer. It makes no difference whether the program actually works. It makes no difference what programming language was used. Software is copyrightable if it is fixed on paper, on a disk drive or a CD-ROM, or even (for those who remember those technologies) on paper tape and punched cards. When future storage mechanisms are invented, software stored on those will also be copyrightable.

Original works of authorship include things that can be "perceived, reproduced, or otherwise communicated." Thus programs downloaded from the Internet are copyrightable, as are music, movies, photographs, and any form of literary work.

Because an author of an original work of authorship may transfer the copyright by sale, gift, will, or trust, it is sometimes more appropriate to refer to the owner of a copyright rather than simply to the author of the work. Whether the copyright is held by the original author or by a successor in interest, I will often refer to that person in what follows as the copyright owner.