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We have a business that has become successful, the platform is a very customized build of Drupal where we integrate many different APIs and have a lot of custom code, mostly in PHP. Drupal and PHP are covered by the MIT license.

We talked to a lawyer and they said because it is the GPLv2 license if someone requests the code we have to give it to them, can we copyright any of this code? How can we protect it.

I know so many startups and platforms are written with open source software so I'm sure there is a clear answer to this but I can't seem to find one on the web.

EDIT We are using drupal which is the GPLv2 license.

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    Do you not believe your lawyer because you think she's not right or because you don't like the (correct) answer? – Dale M Apr 2 '19 at 5:09
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    @DaleM I don't think that this person is actually not believing their lawyer. The most common way to protect software in this kind of context would be as a trade secret. But, the MIT license prevents the business from protecting the software in that context, so next logical question (which apparently the lawyer didn't address) is whether a copyright can be used to protect the code since it can't be kept secret. – ohwilleke Apr 2 '19 at 5:15
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    Are you sure you mean 'MIT license'? MIT Is very permissive and has no requirement to share code. Drupal is GPLv2, which is a lot more restrictive and may require you to publish source code. – Jon Rose Apr 2 '19 at 7:24
  • There are some inconsistencies in your question. As Jon says, the MIT license is very permissive and does not hold you to giving source code. Drupal is released under the GNU General Public License, version 2 or later which does if you distribute object code. However if you are distributing a Drupal instance you are already distributing source code, and if you are not, you are just letting people log onto your servers which are running Drupal you have no requirement to distribute code. Some more details will allow a better answer. – Dave Apr 2 '19 at 9:09
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Ultimately, the issue presented is as much a technical one as a legal one.

You can protect software written in a programming language that you don't own the rights to via copyright. Indeed, the vast majority of copyrighted programs are written in programming languages not owned by the author of the copyrighted work.

You can't meaningfully protect software that is subject to a creative commons or MIT license for commercial purposes.

The question then becomes, is the material you want to protect simply software written in an open source programming language, in which can you can protect the software, but not the underlying language, or is it a mere implementation of open source software that is not so transformative that its character as open source software (or a derivative work of open source software) is overcome.

This would be a question of fact for a fact finding at a trial and would require considerable technical expertise and understanding to evaluate.

I know so many startups and platforms are written with open source software so I'm sure there is a clear answer to this but I can't seem to find one on the web.

There aren't a lot of clear precedents governing where the line should be drawn. Software of any kind you would recognize as such has only existed for about 50 years. Open source software has only existed for 20-30 years depending upon how you count it. And, open source software has only had widespread commercial use for an even shorter time period.

This is an incredibly short among of time in terms of legal history, and it doesn't help that business to business copyright litigation doesn't take place at all in state courts and makes up a pretty small share of the overall federal court docket. And most of the copyright cases that are brought in the federal courts are very simple ones. For example, as of the year 2015, most copyright lawsuits in the U.S. merely alleged that anonymous Internet users downloaded pornography without permission to do so:

[T]he adult website Malibu Media is a prodigious enforcer of its copyrights. According to law professor Matthew Sag of Loyola University in Chicago, Malibu alone was responsible for nearly 40 percent of all copyright filings in federal court in 2015. Litigation against anonymous downloaders, by Malibu and other copyright enforcers, made up nearly 60 percent of the federal copyright docket last year.

In 2016, there were fewer than 4000 copyright infringement cases filed in the entire U.S. (in all media). And, the percentage of civil cases that go to trial at all in the federal courts (rather than being resolved by a settlement or default judgment) is very small to start with, with many of the cases that are resolved on the merits not appealed. There are fewer than 400 appeals per year, nationwide, in copyright, patent and trademark cases combined, and patent and trademark cases make up and outsized share of that total because the amount of money at stake is higher on average in patent and trademark cases than in copyright cases, and many copyright cases involve copyrights in media other than software.

Maybe there are a dozen or two software copyright appeals a year these days. The figures from the last few years, however, are much, much higher than they have been historically, particularly in the area of software copyrights, which is why the case law is so thin on so many more sophisticated areas of software copyright law.

  • I nit, but aren't there a few categories of IP law that states do handle? Patent assignments, non-federally registered trademarks and trade secrets? – George White Apr 5 '19 at 17:11
  • @GeorgeWhite While those categories of IP are handled by states, the federal courts have exclusive jurisdiction over copyrights which is actually what we care about for purposes of this answer. Docket information on other kinds of IP is there only because it couldn't be disentangled from copyright. I've cleaned up my language to reflect what I meant. – ohwilleke Apr 5 '19 at 21:43

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