Is the MIT software license itself copyrighted? What about the BSD license? Could a person copy parts of the license or significantly alter the license for their own use? I've searched but wasn't able to find a source one way or another.
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5In practical terms, you can change anything you like in the MIT license, but if you do that, it won't be the "MIT License" anymore; it will be the "Oaktree License." – Robert Harvey Sep 28 '16 at 19:55
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Thanks, makes sense the license name would have to be different. Do you have a source that states the license itself isn't copyrighted or can be modified like this? – Sep 28 '16 at 20:18
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2Keep in mind any license like that has had a lot more legal analysis than anything you would do yourself, unless you are a lawyer and comfortable writing that sort of legal document. – enderland Sep 28 '16 at 21:03
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2Everything that anyone has ever written is automatically copyrighted. The real question is whether or not the writer allows you to copy their work. That the MIT license allows this seems self-evident; in fact, it is a requirement: "The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software." – Robert Harvey Sep 28 '16 at 21:15
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1@RobertHarvey Presumably there is a distinction of being required to copy it verbatim as a contractual requirement, and being able to use it as the basis of further work? – kwah Sep 28 '16 at 21:56
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@kwah: Of course. – Robert Harvey Sep 28 '16 at 21:56
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Related: https://writing.kemitchell.com/2016/09/21/MIT-License-Line-by-Line.html – Robert Harvey Sep 28 '16 at 21:59
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3There are a number of variants of the MIT license. It's not clear (to me) how those variants were created. The license was authored and published by the Massachusetts Institute of Technology. An important question is: Has MIT formally licensed the license, permitting people to create copies and variants without further permission? Note that the GPL, unlike the MIT License, includes an explicit copyright notice, followed by "Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed." – Sep 28 '16 at 22:29
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@RobertHarvey, It's not self-evident at all that it allows this in general use case because that specific usage applies to a very specific context. – Pacerier Oct 06 '16 at 01:24
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@Pacerier: What "specific usage" would you be referring to? – Robert Harvey Oct 06 '16 at 02:00
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Anything anybody writes is automatically copyrighted (there are exemptions, but I don't think they apply in this case). Therefore, yes, the MIT License is copyrighted, and you can't copy or modify it, regardless of whether you change the name or not.
Analysis: is the MIT License copyrighted? It needs to be a work (check) of authorship (check) that is original … originality can for example be measured by whether or not there are multiple different ways of phrasing the idea. If there is only one possible way of expressing the idea, then the expression is not copyrighted (ideas can't be copyrighted, only their expression), however, if there are multiple ways of expressing it, then the mere fact of choosing one of those ways constitutes a creative act of originality. And even though legalese is a pretty formalized and restrictive language, there are still multiple ways of expressing the ideas embodied by the MIT License, so the MIT License is original and thus copyrighted.
Analysis: can you copy and modify the MIT License? In order to use the MIT License at all, you must copy it into your code. So, clearly, there is an implicit license allowing you to do just that. However, at least in the jurisdictions I am familiar with, such implicit licenses are generally interpreted very narrowly by the courts. So, the license allowing you to copy the MIT License allow applies to copying it into your source code verbatim in order to apply it to your own code. It does not apply to copying it in order to base your own license off of it. And it certainly does not give the right to create a derived work.
There is one other thing that you didn't ask about, that I want to mention: the MIT License has been carefully crafted, analyzed, reviewed, re-reviewed, and re-re-reviewed by MIT's copyright lawyers to make sure that there are no unintended freedoms nor unintended restrictions, no hidden side-effects, loopholes, or surprises of any kind. I urge you to hire not one but several copyright lawyers to subject the changes you want to make to the same scrutiny, lest you fall victim to some unforeseen interactions, side-effects, or loopholes your changes or additions might accidentally create.
Note: I'm not a lawyer, and I don't play one on TV. Copyright Law is tricky business, you should really consult a lawyer first, a) about the legality of copying the license, and b) even more importantly about any modifications you make to the license, to ensure that you don't accidentally rip a huge hole into it that you don't intend to.
Jörg W Mittag
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2Well, without copying privileges, you wouldn't be able to use the MIT license in your own projects at all. – Robert Harvey Sep 28 '16 at 21:10
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Anything anybody writes is automatically copyrightedThat's not true. Certain things are eligible for copywrite, and others aren't. I don't know whether a licence does or doesn't, but it certainly can't be taken as an assumption that it is. – Sep 28 '16 at 21:15 -
1@Servy: In the United States, assuming that a creative work is otherwise eligible (i.e. it meets the required standards for originality, etc.), it is automatically under copyright the moment the author creates it. – Robert Harvey Sep 28 '16 at 21:18
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@RobertHarvey Sure it is ! However, coming back to the license, to be eligible for copyright, the text must be an "original works of authorship" - originality referring to something new and not trivial. For example, are not eligible according to US copyright office: "works consisting entirely of information that is common property and containing no original authorship" and "titles, names, short phrases, and slogans (...)" - But you're right, it's a complex matter, and I'm not a lawyer either ;-) – Christophe Sep 28 '16 at 21:51
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1I tried to address some of those concerns in an edit to the best of my knowledge. I do have some training in copyright law, including several semesters under a professor who is also an advisor to the EU and helped craft the current EU copyright directive. But nonetheless, this question is at the very edge of my knowledge … which is just one more reason for me to be even more convinced that software licensing questions simply don't belong on this site, because it is highly unlikely that a) someone on this site is actually qualified to answer them, and b) the average OP will even be able to … – Jörg W Mittag Sep 28 '16 at 22:16
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AFAIK, some texts are not copyrighted. IANAL, but IIRC in France the law & the Constitution is not copyrighted, the national anthem La Marseillaise neither (and not only because it is old enough to be in the public domain, but because laws are saying so), etc. – Basile Starynkevitch Sep 28 '16 at 23:22
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These texts are likely not entirely original and may be remotely copyrightable. But the question I would rather ask would be:
If I copy parts of the license or significantly alter the license for my own use, can someone object to this copying and sue me for copyright infringement?
What would be the license terms that apply to these license texts? the license terms would apply to themselves.
Who could have the ground to sue? The original author, possibly indirectly the UC Regents or the MIT.
What would be their incentive? they have absolutely nothing to win there.
The likeliness that someone would sue me is zero. And if they would, I would assume that any sane judge would dismiss this as frivolous.
Now say I am really worried about this and I am truly paranoid: in the worst case the BSD or MIT license would also apply to their own terms. Hence I could modify the license text and also keep the original text to state that this applies to my modified text. (but I would not do this, this would be only for the crazy and the paranoid).
As a side note, both texts date from the late 80's. Both contain similar sentences and both have been used as the base for many other licenses and variants such as the Apache license(s). Both texts also likely have been based on pre-existing legalese boilerplate. Both texts are unlikely truly original themselves, and surely derived from other ancestor texts. All this would make claiming any copyright on these short texts rather difficult.
Philippe Ombredanne
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You need a license permitting you to fork the MIT license.
Governing what can be copied or copied and modified is what this and other types of licenses is for. It follows directly that no license can license itself.
MIT wrote this license. They are the Copyright holders of the text.
If MIT has not released the text under another license permitting copying and modification, it falls under the implied automatic copyright enforced by law in most countries.
Unless you hold a license to copy and modify, or just copy verbatim, the MIT License file, you are violating this automatic Copyright that MIT holds for having written it.
From the text's impact on the industry, a lawyer could convincingly claim it a work of significance, and most of those working in said industry would a) lack the funds to find a defense lawyer better than MIT's, and b) lack the time and money appeal to higher court.
This is not a joke. If MIT did not provide a license to copy, let alone copy and modify, the license text their lawyers missed a trick. And without it the question is logical as well as understandable.
Henrik Erlandsson
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