Adam I. Gerard

Intellectual Property

Originally posted on

Caveat: I'm not a lawyer so take what you read here with a grain of salt. However, the specific laws below should be of interest to anyone seeking to produce their own creative work.

Copyright inherently applies to code (once it exists in a fixed state like a file).

Like creative work, copyright applies whether or not it is explicitly copyrighted or licensed.


  1. To provide enforcement conditions, code should be copyright registered or appropriately licensed.
  2. Code is copyrighted by file.

Due to the cost and difficulty in registering an entire production-worthy enterprise code-base (and every change made to any of those files) many companies will opt to avoid this issues and adopt an open-source posture:

  1. Doing so often helps to speed up adoption of some technology, codebase, or tool.
  2. Enforcement is handled through non-profit firms or large consortiums of stakeholders.
  3. By clearly defining the licensing you can avoid some of the legal woes that arise.

Many companies will wait to sue until a violation is worth pursuing in court (due to the immense legal costs and time such cases can often accrue).

Others have adopted a more enlightened approach (whereby they recognize the value of intellectual property but share it through partnerships). That may come as a surprise but a lot of companies have found that it's more valuable to share their intellectual property than fight to keep it to themselves:

  1. Elon Musk - Tesla
  2. Microsoft - Azure

In some cases, legal disputes will arise nevertheless:

Consider the high-profile civil case where Oracle sued Google over reusing and distributing its open-source software in the Android SDK. Oracle sought $9 billion in damages.

Originally, the courts handed the case to Google arguing that no violation of intellectual property had occurred due to "Fair Use" (which also allows teachers, for example, to copy works without direct permission for purposes of teaching).

However, an appeals court over-turned the initial decision and the case is back in court.

Open Source Licenses

  1. The MIT license is used by Node and NPM
  2. The Apache 2.0 is used by Java and Spring

These grant patentable projects to be built on top of the code as long as the licenses remain and novel functionality provided. To make code use-friendly, attaching a license is preferable and usually a requirement of the licensing regimen. Furthermore, these licenses grant explicit copyrights to the enduser.

Check out:


  1. Patent protection applies to novel functionality (not the specific implementation) of a piece of code.
  2. Thus, using open-source libraries to build a patent protected piece of software functionality is fully allowed.
  3. However, which open-source libraries can be used must be compatible with building and patenting the functionality in the first place.


Essentially, these states mandate that if you do something on your own time, on your own equipment, and that's not directly related to your main employment - it's yours, no matter what documents you sign:

  1. California (California Labor Code, § 2870).
  2. Delaware (Delaware Code Annotated, Title 19, § 805)
  3. Illinois (Illinois Revised Statutes, Chapter 140, §§ 301-303)
  4. Kansas (Kansas Statutes Annotated, §§ 44-130)
  5. Minnesota (Minnesota Statutes Annotated, § 181.78)
  6. North Carolina (North Carolina General Statutes, §§ 66-57.1, 66-57.2)
  7. Utah (Utah Code Annotated, §§ 34-39-2, 34-39-3)
  8. Washington (Washington Revised Code Annotated, §§ 49.44.140, 49.44.150)