[gentoo-dev] Copyright assignment and ownership (again)

[Anthony Gorecki]

An interesting idea presented itself this evening after listening to a 
description in #gentoo-dev of a minor author-developer conflict regarding 
giving credit to the original author of an ebuild, which had been heavily 
rewritten by one of the developers: 

Having read Gentoo's copyright policies and knowing that 
they're /unquestioningly/ followed, I should submit an ebuild (being not 
bound by a copyright assignment agreement) and then claim rights on it. 
Perhaps if I were to initiate litigation against Gentoo, alleging that it was 
falsely claiming copyright ownership over my work, the legal action would 
facilitate the developers into abiding by their own copyright assignment 
policies.

http://www.gentoo.org/proj/en/devrel/copyright/


Quite frankly, I don't believe it's very likely that a legal entity will 
initiate such litigation; unfortunately, in the rare event that litigation 
did occur, it could cause a legal mess that would likely end in an 
undesirable fashion. There are a number of factors to consider here. The 
below assume that the submitting user has not signed a CAA:

First, licensing: 
If a user submitted an ebuild containing the GPL licensing notice, Gentoo 
could rightfully use and modify the ebuild as it required, distributing it as 
needed. On the other hand, if a developer actually committed an ebuild 
without that licensing statement (or added it to the file on their own accord 
prior to it being committed), Gentoo would have absolutely no right to use, 
modify or distribute such a work. In such circumstances, the author could 
order the ebuild to be removed from the tree. One ebuild may not be of great 
importance, however imagine if it was thirty ebuilds, or perhaps more. What 
would happen if it were hundreds of ebuilds?

Second, ownership:
Assuming that a contributed ebuild is submitted with an enclosed GPL licensing 
"stamp," normal developer-use (thereby implying modification and 
distribution) of the file could occur-- I would surmise that this is a vastly 
more common occurrence than the former example. While it has less potential 
to impact the end-users of Gentoo, the author of such an ebuild could force 
Gentoo to cease claiming ownership of the file in the standard, "Copyright X 
Gentoo Foundation," notice. Ultimately, this might force the ebuild to be 
modified to give proper credit, which is not an enormously difficult issue 
for a developer to correct. 

What does concern me, however, is that such contributions might be working 
themselves into works other than the ebuilds, being Gentoo's made-in-house 
software, written articles and project resources. Again, the author might be 
able to force Gentoo to cease claiming ownership over non-assigned work, 
though more importantly, this limits _Gentoo's_ ability to enforce the 
integrity of their work. 

If a user were to begin illegally using a derivative version of Portage in 
violation of Gentoo's copyrights (whether it be licensing violations or 
otherwise), the potential for foreign code existence suddenly becomes 
critical to the defense of the software. I can only imagine the ease at which 
a defense attorney could argue to a court that Gentoo only haphazardly 
requires copyright assignment from its contributors, and is therefore 
unaccountable for its software, or portions thereof-- how they would need to 
prove that each and every single line of code was under their ownership. It 
may very well be that some sections of code could be found unaccountable, 
depriving Gentoo of its party interest in such segments.

In this way, the Linux kernel is open to abuse. As IBM is teaching SCO, 
portions of code that you own cannot be illegally used under terms contrary 
to that of the license under which they are released. Unfortunately, IBM can 
only claim rights to and defend the code that it personally contributes. For 
all of the other code, each individual contributor is responsible for 
defending their work against abuse, which is the reason that some projects 
opt to require copyright assignment to a single entity in a collaborative, 
open-source development environment. 

Arguing whether it's appropriate to assign copyrights is not within the scope 
of this message, but if Gentoo is planning to continue under the mandate of 
requiring contributors to assign copyrights, then there has to be no 
acceptance for not following that rule. Either you assign copyrights 
religiously, always and under every possible set of circumstances pending 
death by infringement, FUD and the HURD people, or you don't assign 
copyrights at all. 

My personal belief is that copyright assignment is not necessary for ebuilds, 
as they have a short shelf-life and are relatively trivial to replace if a 
problem arises. The written works, software and all other project material, 
in contrast, deserve nothing less than the uncompromised and genuine legal 
protection that would be available through a copyright assignment policy that 
was followed with respect by the developers and contributors.

Heated flames and constructive discussion are welcome.


-- 
Anthony Gorecki
Ectro-Linux Foundation