Featured In Video:
(Video transcript below)
Despite drastic increase in blockchain-related patent filings (see chart below), most of the software developed by the blockchain community is created under some form of open (free) software license. The core code of Bitcoin itself (Bitcoin Core) is held under the MIT-License, the least restrictive free software license.
Towards the opposite end of the open-source spectrum, Ethereum was released in 2015 under GNU (GPL) which still allows for free use and alteration but requires any subsequent offspring software to also be held under the same license, thereby discouraging proprietary software from being built on top of the Ethereum network. Numerous other licenses exist, varying in terms of permissiveness and other qualities, and sometimes offering multiple versions with or without specific clauses.
(Video Transcript Below)
It is often said that “blockchains are open-source”. This is a sweeping generalization, and like most generalizations, not entirely true. Firstly, blockchain is an entire community, not a single software program, and within that community, many different blockchain networks have been designed and launched, including private blockchains owned by companies and protected by patents.
Furthermore, different aspects or “parts” of a blockchain may require their own software program. Three primary software components of many blockchains are cryptography, a distributed ledger, and a decentralized system, and each of these aspects could use either open-source or proprietary software. Thus, a blockchain can be built on a combination of open-source software and proprietary software working together.
So, Micah do you want to give us a little bit of a sense about what open source is?
Sure, well, open source, to me, in practical terms, basically, refers to software that’s been released under open source licenses. And what open source licenses have in common with all licenses, is that they grant certain intellectual property rights to users who are subject to the license.
Usually, in this case, they’re copyright rights, so they are rights to reproduce, to use, and to create derivative works, which means, you know, for example borrowing someone’s source code and writing your own program integrating it, or in some cases, just borrowing someone’s library of compiled code and making function calls to it. So, that’s kind of how you “sign” an open source license, and they’re generally free for anyone to sign, and the source code is generally provided for free or in a manner that is free, in the sense of unrestricted to users who are willing to be subject to the terms of the license, and they have to be if they use it, generally. Now, these licenses range from more restrictive licenses that impose more requirements on the user, generally, requirements aim to guarantee that the source code the user produces will, in turn, be available to other people, and an example of that is the GPL license, or on the other extreme, which I think would be represented best by the MIT-license, they could put very little restriction on the user’s use of the computer program that they produce or the restrictions that they, in turn, can impose on it.
Now, there’s two things that are important, I think, as a sort of “knock-on effect” of these licenses: number one are the legal consequences, and the other one is the practical consequences.
The practical consequences are that a lot of the material that is released under these licenses is going to be freely available to anyone who wants to look at it. It’s disclosed, which means it’s in the public domain basically and people will often ask me, “How can you patent something in blockchain if it’s in the public domain?” and they will also ask me “How can you patent something in blockchain if it was given to you under a license, or, if it was produced under a license?” about, say, a given implementation that is designed to prevent people from patenting things, or restricting access.
To answer the second question first: If you’re not a party to the license, if you didn’t sign it, the license won’t affect you at all, because it generally sounds in copyright, which protects the particular form in which an idea was practiced, as opposed to the idea itself. This is sometimes referred to “The Merger Doctrine” in copyright law. So, if you learn all about a given blockchain implementation and then go out and write your own based on what you’ve learned, you’re pretty safe under copyright law and you’re not subject to the terms of its license.
The second side to that is some of these licenses are not very restrictive, so, they simply won’t prevent you from, for example, filing patents. Almost none of them prevent you from filing patents, even the GPL, and many of them won’t prevent you from enforcing the patents, and as for the other one, almost any invention that is subject to a patent is basically some kind of an incremental improvement to what has come before. A combination of previously existing elements or a slight improvement to a previous invention. So, generally speaking, an invention that’s a slight improvement over something in the public domain can often be subject to patent protection, you know, depending on whether you get a patent.
Thanks for that really thorough, I wasn’t expecting that long of an answer. That was really impressive.
Maybe, just for a second, touch on how this is relevant, especially if there’s any new blockchain related entrepreneurs in the audience today.
Well it’s relevant because much of the blockchain technology was developed originally under open source licenses. Bitcoin in particular, which is something of a big deal in the blockchain community, was developed under the MIT-license. I believe ethereum is offered under GPL, although it kind of depends on what aspect of ethereum some of them are also offered under the related licenses.
So, I suppose if you’re thinking of borrowing somebody’s library, or using somebody’s library to make, as part of your implementation you have to consider what license you’re going to be receiving that library under, and whether you’ll be able to cope with the strictures of that license. And, as with anything else, what’s already out there is going to affect what you can get a patent on, so, what’s publicly disclosed you have to you have to think in terms of what your “incremental improvement” is.
Okay, thanks. I appreciate that.
Caldwell Intellectual Property Law