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Copyright assignment - Once bitten, twice shy

The misuse of free software licences

by Richard Hillesley

"When you find a diamond that belongs to nobody, it is yours. When you discover an island that belongs to nobody, it is yours. When you get an idea before any one else, you take out a patent on it: it is yours. So with me: I own the stars, because nobody else before me ever thought of owning them" - The little prince by Antoine de Saint-Exupery

The issues around copyright assignment and free software have always been a controversial topic and have played a major part in many forks and schisms in free software projects. Copyright assignment can unify a project under common ownership, or it can be misused to impose control.

Copyright denotes ownership of code, it is regarded as property and as such it can be bought, sold or assigned. This applies to all copyrighted material, and is a weakness in all free software licensing, which is why the FSF has always recommended that the ownership of GPL code be assigned to the FSF, which itself has caused ructions among some developers in the past, notably between the developers of Xemacs and GNU Emacs.

The GPL, or any other software licence, depends upon the framework of copyright law. Copyleft is a hack on copyright law that puts the rights and responsibilities back into the hands of the user.

The logic of Richard Stallman and the FSF is that "a copyright holder in a jointly-authored work is in a weak position to enforce its copyright unless all co-authors participate in the legal action". If all the authors participating in an open source project assign their copyrights to the FSF this puts the FSF in a strong legal position to act as an umbrella in defence of the GPL and any code licensed under it.

Ownership by a trusted foundation or non-profit gives some assurance of the integrity of the licence, and the FSF copyright assignment agreement promises to keep the code free; couched in these terms, copyright assignment is probably a good thing.

Equally, if ownership of copyright is dispersed among all the contributors the developers themselves retain control of their own destiny. For example the BusyBox project , despite having no copyright assignment or recognition as a legal entity, has successfully enforced the GPL on a number of occasions.

If the ownership of a piece of code is assigned to a third party, be it a corporate or a non-profit, that third party is usually given the right to release the code under another licence, now or at a later stage, and the licence may not always be open source or free. Code that is 'owned' becomes an 'asset' that can be re-used and sold.

Hi-ho silver lining

Ownership of free software is a difficult area, and one that is resolved simply by the Linux kernel project. The code belongs to everyone and no-one, and the copyright for each individual piece of code belongs to the original coder, so that any future reassignment of the licence or the code for the Linux kernel requires the agreement of every other contributor.

This is true of many other free software projects. Those who work on the kernel are programmers not lawyers and if there are issues they will change the code, not the relationship between the programmers and the code. Characteristically, the Samba project has a much more forthright policy of refusing to accept copyright that is assigned to a commercial entity, and avows that contacting individuals "is much easier than contacting a company." The Squeak project is another example of distributed copyright and the Squeak developers spent the last four years getting in touch with its contributors to approve a change of licence.

It is arguable that a stance of studied innocence around copyright assignment has worked in favour of these projects. There is no commercial ambiguity and the code remains free, which works to the advantage of companies who wish to collaborate on the code. Their code will not be 'owned'.

Drizzle and light

Awareness of the issue has been highlighted by MySQL, OpenOffice.org and the sale of Sun Microsystems to Oracle. For their different reasons both MySQL and OpenOffice.org have practised copyright assignment. In the case of MySQL this has allowed MySQL to offer both GPL'd and proprietary versions of the code.

As Brian Aker, a contributor to Drizzle, a fork of MySQL, has noted "dual licensing forces any developer who wishes to contribute into a position of either giving up their rights and allowing their work to end up in commercial software, or creating a fork of the software with their changes. In essence it creates monopolies which can only be broken via forking the software."

The plus side of the Drizzle fork for Aker is that "in our single year of operation we have achieved a larger base of contributions than MySQL achieved in its decade long existence."

Next: Coding by paperwork

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