Re: [gentoo-project] Call for agenda items - Council meeting 2018-10-14

[Rich Freeman]

On Fri, Oct 12, 2018 at 7:34 AM Sarah White <kuzetsa@××××××××××.ovh> wrote:
>
> On 10/11/2018 09:59 PM, Rich Freeman wrote:
>
> I think the confusion / misunderstanding here is evidence
> of exactly what I was referring to. Copyright Notices are
> notices that a copyright is held, and GLEP 76 is titled:
>
> "Copyright Policy", and only mentions copyright notices.

It also includes the GCO/DCO, which is verification of the right to
redistribute and accuracy of the license, which is copyright-related.
It originally included an FLA as well, but this was removed.

>
> Do "gentoo authors" file a lawsuit when there's infringement?
>
> That was the main / only thing I was referring to.

And I answered this in the part you didn't quote inline.  "Gentoo
authors" would not file a lawsuit.  Any copyright holder can file a
lawsuit at any time if they wish, and no copyright notice changes
that.

> "this is mine and I will protect it" - copyright holder

Again if you don't have a notice at all you can still sue somebody if
you want to if they copy your work outside of fair use.  A notice just
eliminates the possibility of one of many types of defenses they could
argue.  IMO the notice we have is sufficient, but really I'm not that
concerned if it isn't.

> >>
> >> Does this mean "gentoo authors" will appear in court when
> >> there's infringement? This is not a rhetorical question.
> >>
> >
>
> [...]

Do you want me to copy the same response again, despite already being
accused of redundancy?

Fine:

"Gentoo authors" would not file a lawsuit.  Any copyright holder can
file a lawsuit at any time if they wish, and no copyright notice
changes that.

>
> >
> > Ultimately though if Gentoo gets sued by somebody, the burden of proof
> > is actually on them to prove that THEY owned the copyright.  Gentoo's
> > burden would probably be to show that reasonable care was exercised
> > over accepting code, and that infractions were dealt with in a
> > reasonable manner when brought to our attention.
> >
>
> ^ The copyright holder (the legal entity or person in the
> copyright notice) would be the one to file lawsuit(s) when
> there's infringement.

Sure, and if somebody sues Gentoo they would be claiming to be the
copyright holder.

Now, if Gentoo wanted to sue somebody then Gentoo would need to
establish ownership of copyright.  IMO that is pretty unlikely to
happen.

>
> I'm specifically / directly asking:
>
> Is the gentoo foundation the copyright holder?

IMO there is no benefit to the Foundation to take a position on this
issue.  The GLEP does not require assignment to Gentoo.  Whether past
contributions were assigned might be debated by some.

IMO we could argue all day long about that, but there is no benefit in
doing so.  First, the situation is somewhat vague.  Second, I have no
idea whether it would ever be important to establish Gentoo ownership
of past contributions in a court, but if it were important then the
best argument the other side could make would be pointing to
Trustees/Officers/etc making statements that hurt its case.  So,
making statements on the past doesn't help us, and it might hurt us.
So, why do it?

The GLEP was designed to improve things going forward.

Long-term I think there is more interest in using a mechanism like the
FLA than doing copyright assignment.  IMO that has all of the upside
of assignment and none of the downside.

>
> > Our notices already make this clear, regardless of whose name is listed.
>
> That's not clear. A lot of people see: "this is free, and
> the source code is available", and then make assumptions
> about what that means:

Those quoted words appear nowhere in the GLEP.

What our files ACTUALLY say is something like "Copyright 2018 Gentoo
Authors".  Then we have a license to allow redistribution.  If people
don't want to read the license that is on them.  If people read
"Copyright 2018" and assume that this means that it must be free to
copy without any restrictions that is on them also.

> There's very little documentation about gentoo's procedure
> when FOSS/Libre work (copyleft / copyrightable portions of
> gentoo OS and related tools) is mistreated, and a copyright
> action is needed in order to enforce the licesnse (copyleft
> style: because that's why there's copyright notices)

Correct.

Committing copyrighted stuff to Gentoo is routine.  Gentoo suing
people for copyright infringement is not routine.  It really doesn't
make sense to have a standardized GLEP for something we've never done,
and might never do.  Why constrain ourselves to that degree in the
event we were ever to decide to do such a thing?

> What is gentoo's policy when infringement happens?

Gentoo has no documented policy I'm aware of.

> (when "gentoo authors" are the copyright holder)

Ask the Gentoo authors.  When I'm the Gentoo author I don't
necessarily have any plans to go suing anybody anytime soon, but I
reserve the right to do so, and if I do so it would be at my own sole
discretion at the time.

> If a business entity's name is listed as the copyright
> holder, their copyright notice means (at least it should)
> that they'll be the ones who show up in court when the
> time comes to protect against copyleft infringement:

Legally a copyright notice does not have to list the entity who will
file a lawsuit.

> An infringement suit is when the copyright holder ("gentoo
> authors", and I'm questioning how "gentoo authors" hold
> a copyright if listed as the "entity" which holds the
> copyright) SUES the infringer, not the other way around.

You're assuming "Gentoo authors" is a single entity.  The policy makes
no claim for/against that.

> To me, the (main) point of GLEP 76 is to let entities who
> are willing/able to file a copyright lawsuit have the
> option to do so, partly because gentoo doesn't seem to have
> a policy in please for protecting copyleft / copyright.

GLEP 76 mostly serves to protect Gentoo against others suing us by
demonstrating reasonable care.

To the degree that it mentions notice, it is mainly because OTHERS got
upset about Gentoo changing THEIR copyright notices, because our
previous policy required all ebuilds to name the Gentoo Foundation
exclusively.

However, the policy still preserves our rights to sue others if
necessary, IMO.  If we wanted to optimize to be more efficient at
suing people we'd probably do more to prepare for this.  However, that
really isn't the organizations primary purpose.

-- 
Rich