

GnuTLS, copyright assignment, and GNU project governance - jmillikin
http://lwn.net/SubscriberLink/529522/854aed3fb6398b79/

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btilly
Copyright assignment has a major purpose that is not acknowledged in this
article. In some jurisdictions (I know that this used to be the case in the
state of New York) it is the case that, by default, all software produced by
employees who are software developers belongs to the employer, whether or not
that software was developed on personal equipment, away from the office. In
those jurisdictions it is also the case that many programmers who labor under
this oppressive legal regime are entirely unaware that their time is not truly
their own. They may therefore contribute to open source projects, and claim
licensing on software, that is not truly valid.

The FSF copyright assignment process stands as a guarantee that GNU software,
at least, will never encounter any issues based on these legal facts. You may
use GNU software with assurance that the legal status of that software is
very, very clear.

What about the rest of us? Well there is a defense for copyright infringement
that basically says, "I relied on reasonable assurances that I was not, in
fact, infringing." That covers your past infringement. But not necessarily
future offenses. But the risk is still low. As a practical matter, companies
rarely sue over this type of issue, and if they do, they generally have little
interest in suing every innocent bystander who accidentally infringed. So many
may find the risk acceptable.

But Stallman is an absolutist. He wants absolute guarantees. And copyright
assignment helps him get there.

Please note that I am not a lawyer and this is not legal advice.

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davidw
It's worth noting that the ASF also requires copyright assignments.

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DannyBee
No, AFAIK it requires copyright licenses given through a contributor
agreement, which are not the same.

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dalke
I can confirm that it's a Contributor License Agreement:
<http://www.apache.org/licenses/#clas>

> Except for the license granted herein to the Foundation and recipients of
> software distributed by the Foundation, You reserve all right, title, and
> interest in and to Your Contributions.

~~~
davidw
Oops. My recollection was of paperwork but I got the nature of it wrong.

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apendleton
One particular nitpick:

> One of these [scenarios for relicensing GPLed softwar] is relicensing to a
> later version of the GPL. This scenario is in most cases already covered by
> the default "or later" language that is usually applied to software licensed
> under the GPL.

That language doesn't actually cover the case in question. The "or later"
clause lets the _licensee_ choose which version of the GPL they want, but the
FSF's interest in relicensing to a later version is often that it wants to
impose the stricter terms of a newer GPL version on licensees. A licensee
could avoid the GPLv3 patent restrictions on software licensed "GPLv2 or
later," for example, by choosing to stick with the GPLv2.

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cperciva
_A licensee could avoid the GPLv3 patent restrictions on software licensed
"GPLv2 or later," for example, by choosing to stick with the GPLv2._

... unless he want to use a newer version of the software which RMS has
decided should be licensed under the GPLv3 only. FreeBSD has run into this
problem with gcc, for example: We could no longer backport bug fixes, but
instead had to "clean-room" re-develop them.

~~~
apendleton
Right, I'm saying that's intentional on the part of the FSF, and an "any later
version" clause doesn't let them do that. Obviously, that's not helpful for
you, but if that's what they're trying to do, they need to be able to
relicense in order to do it, which means either copyright assignment or
agreement from the copyright holders.

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tjr
I find Richard's response perfectly reasonable. The work was donated to,
copyright-assigned to, and done under the auspices of the FSF / GNU Project
for years. Resigning from GNU and forking the project is one thing, but trying
to remove the project from GNU is something else altogether.

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DanBC
Reasonable, but dumb.

The maintainer will fork the project under a new name, and continue to work
for it. GNU will be left with a piece of software that slowly bitrots and
becomes outdated, unless it can attract someone else to take it over.

~~~
joe_the_user
If the project is important enough for free soft in general, they'll find
someone. If not, oh well, the cost for waste disposal of bit-rotted software
project is rather small, no?

~~~
DanBC
They had someone, who seemed to be doing a good enough job. Now they have to
find someone else to do that job, while competing with a new fork of the code.

And the cost of obsolete code is not a bit of web storage; it reflects on the
project as a whole. The GNU userland tools have been important for Linux. But
what happens if people move to different user land tools?

It's not super important, but it is a shame that people leave projects.

Perhaps if free software and open source software had invested in a bunch of
diplomats to translate the flames between De Raadt, Torvalds, Stallman, etc
things would look very different today.

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jwildeboer
Hm. According to european copyright/authorship rules a transfer of copyright
is simply impossible as we have the "Droit d'auteur" principle that makes
authorship rights inalienable. This is a known major difference between
european and US style copyright.

Therefore I question the transfer of copyright in this case but IANAL.

This simple fact is the reason that FSFE adopted the fiduciary license
agreement <http://fsfe.org/activities/ftf/fla.en.html> to emulate the FSF
approach under european laws.

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adulau
Knowing a bit the background of the FLA, I think that was a just an additional
way to convince lawyers to understand the free software licensing model. The
patrimonial rights can be transferred in Europe too that's clearly what you do
when you make the transfer of copyright in US. As the common ground of the
Berne Convention has been ratified by US and Europe, the transfer of copyright
(on the patrimonial aspect[1]) is based on a common legal ground.

[1] Concerning the "moral rights" in software/computer program, it's usually
not legally applicable for software.

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rbehrends
No, in Europe economic rights are not always transferable, either. The
classical example is the German Urheberrechtsgesetz, which does not allow for
the transfer of either moral or economic rights [1]. General practice is to
grant the publisher a right to use the work (which can be exclusive or non-
exclusive, perpetual or time-limited, etc.).

This is a subtle, but important distinction. Because such a grant does not
entail unlimited rights to relicense the work and the author retains a number
of unwaivable rights associated with the work. (German law intentionally aims
to protect authors against various exploitative practices by publishers,
making it very difficult for authors to sign rights away.)

The Berne Convention does not make it necessary for the signatories to allow
for such a transfer, either. It only says that if economic rights can be
transfered, moral rights remain with the author.

Also, moral rights most definitely apply to computer programs in many
jurisdictions.

[1][http://de.wikipedia.org/wiki/Deutsches_Urheberrecht#.C3.9Cbe...](http://de.wikipedia.org/wiki/Deutsches_Urheberrecht#.C3.9Cbertragbarkeit_des_Urheberrechts)

~~~
adulau
There are also many jurisdictions where moral rights are excluded to computer
programs. Moral rights on computer programs are usually limited to "practical"
rights like claiming being the authors. It's not really in opposition to the
transfer of economic rights.

You are correct about the German case for moral rights but that was the main
issue with the FLA. The FLA was mainly designed by a German lawyer thinking
about his national legal framework.

In my perspective, we should avoid the over-legalization of (free) software
development. And transfer of copyright/"patrimonial rights" is one of them,
there are many way to exercise your rights as a free software author. I
sponsored and supported for many years the FSF but I personally think that
they made a big mistake, they underestimated the capacity of the "copyright
mess" to secure free software (the Linux kernel is one of the example, you
won't be able to find all the authors if you want to change the license to a
non-free license). I know that seems to be a contradiction but as free
software is relying on copyright, you can use also benefit from the multiple
ownerships from the same artwork/computer program to secure free software. A
single entity and a transfer of ownership can be even more risky...

