Re: OpenSales -- DRAFT developers agreement
On Wed, 30 Aug 2000, David Johnson wrote: On Wed, 30 Aug 2000, [EMAIL PROTECTED] wrote: OpenSales (my employer) is working on a set of supporting legal documents. We've drafted a developers agreement as part of our code submission process, and have posted it for review at http://www.opensales.org/html/devagree.shtml Yeeargh! You want me to assign all rights to you forever for ZERO compensation? It's not too often one has to sign a contract in order to make a donation. Copyright remains with you. -- John Cowan [EMAIL PROTECTED] "[O]n the whole I'd rather make love than shoot guns [...]" --Eric Raymond
RE: OpenSales -- DRAFT developers agreement
I've read through your DRAFT developers agreement. One of the basic rules of contract law is that there must be "consideration" for every contract. Yet your agreement expressly states that "You do not want to receive any compensation, at any time, for any reason from OpenSales or anyone else for your Contributed Code." If the Contributed Code is a gift, it can be revoked at any time for any reason. How do you intend to get around that? The statement that "OpenSales Has The Right To Enforce The GNU GPL For Your Contributed Code" won't work. Under the copyright law, only the copyright owner or owner of an exclusive right has the standing to enforce a copyright. That is probably why the FSF requires copyright assignment. If a contributor grants you a license to his Contributed Code under the GPL, then you have the right to use that code as part of a derivative work including your own code, as long as your Larger Work is also licensed under the GPL. Why isn't that sufficient? An easy way to ensure that the recipient of Contributed Code has the right to use that code under the GPL is to insist that the contributor include a statement like the following in his source: (C) Copyright year copyright holder. All Rights Reserved. This software is subject to the GNU General Public License, Version 2 (dated June 1991) (the "License"). You may not copy or use this software, in either source code or executable form, except in compliance with the License. Software distributed under the License is distributed on an "AS IS" basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for specific language governing rights and limitations under the License. Then ANY recipient of the source code can use the software, subject to the terms of the GPL. Please explain why you believe that other terms and conditions are necessary, or why a contributor would be tempted to agree to any such terms and conditions. /Larry Rosen -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Wednesday, August 30, 2000 7:40 PM To: Free Software Business; License-Discuss list Subject: OpenSales -- DRAFT developers agreement OpenSales (my employer) is working on a set of supporting legal documents. We've drafted a developers agreement as part of our code submission process, and have posted it for review at http://www.opensales.org/html/devagree.shtml Developer agreements are something I've advocated for companies engaged in free software development. I believe they offer protections to both companies and developers. Their use is somewhat controversial -- the FSF has one which requires copyright assignment, XFree86 uses one, as do a handful of other projects, but most seem not to use one, or drop those which they've used in the past (eg: Python and CNRI). Comments and feedback appreciated. Thank you. -- Karsten M. Self [EMAIL PROTECTED] http://www.netcom.com/~kmself Evangelist, Opensales, Inc.http://www.opensales.org What part of "Gestalt" don't you understand? Debian GNU/Linux rocks! http://gestalt-system.sourceforge.net/K5: http://www.kuro5hin.org GPG fingerprint: F932 8B25 5FDD 2528 D595 DC61 3847 889F 55F2 B9B0
Re: OpenSales -- DRAFT developers agreement
On Thu, Aug 31, 2000 at 11:16:56AM -0700, Lawrence E. Rosen wrote: I've read through your DRAFT developers agreement. One of the basic rules of contract law is that there must be "consideration" for every contract. Yet your agreement expressly states that "You do not want to receive any compensation, at any time, for any reason from OpenSales or anyone else for your Contributed Code." If the Contributed Code is a gift, it can be revoked at any time for any reason. How do you intend to get around that? The statement that "OpenSales Has The Right To Enforce The GNU GPL For Your Contributed Code" won't work. Under the copyright law, only the copyright owner or owner of an exclusive right has the standing to enforce a copyright. That is probably why the FSF requires copyright assignment. I was remembering a clause I'd through was part of the Mozilla PL, it was actually part of the original "OpenMerchant Community Source License". Though we adopted the GPL, there were some interesting and IMO rather good aspects to this license. 1.6 Licensees Rights to Enforce. You may have the right to enforce the obligations of Other Licensees under the License, and the Original Developer hereby grants You that right as part of the License, subject to the limitation that the Original Developer may not be made a party to any suit brought by You in that regard and that Your right to enforce this License will not include any circumstance where the Original Developer is a necessary or indispensable party or is otherwise required to be a party to an action or other proceeding. It's language I somewhat like -- it provides independent developers with additional rights and powers, strengthens (IMO) the enforcement of the license. If the right is one of the owner, can it *not* be assigned (exclusively or nonexclusively) to another party? The relevant language appears to be 17 USC 501(b): (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright. http://www4.law.cornell.edu/uscode/17/501.text.html If a contributor grants you a license to his Contributed Code under the GPL, then you have the right to use that code as part of a derivative work including your own code, as long as your Larger Work is also licensed under the GPL. Why isn't that sufficient? This is a crux question: is the GPL in and of itself sufficient protection to both contributors and code maintainers, including in the instance of a corporate code maintainer, or isn't it: To be sufficient, or not to be sufficient. That is the GPL question. I'm going to try not injecting my own biases into the discussion at this point, though the question is indeed key. -- Karsten M. Self [EMAIL PROTECTED] http://www.netcom.com/~kmself Evangelist, Opensales, Inc.http://www.opensales.org What part of "Gestalt" don't you understand? Debian GNU/Linux rocks! http://gestalt-system.sourceforge.net/K5: http://www.kuro5hin.org GPG fingerprint: F932 8B25 5FDD 2528 D595 DC61 3847 889F 55F2 B9B0 PGP signature
RE: OpenSales -- DRAFT developers agreement
The case law is pretty clear. Under the federal Copyright Act, only the legal or beneficial owner of an exclusive right under a copyright at the time of the alleged infringement has standing to sue for infringement. See Copyright Act, 17 U.S.C. ยง 501(b). Further, an exclusive licensee may only sue for infringement of the particular rights within the scope of its exclusive license. (A beneficial owner is one who assigns the title to his work in exchange for the right to receive royalties from the copyright's exploitation.) I was remembering a clause I'd through was part of the Mozilla PL, it was actually part of the original "OpenMerchant Community Source License". Though we adopted the GPL, there were some interesting and IMO rather good aspects to this license. 1.6 Licensees Rights to Enforce. You may have the right to enforce the obligations of Other Licensees under the License, and the Original Developer hereby grants You that right as part of the License, subject to the limitation that the Original Developer may not be made a party to any suit brought by You in that regard and that Your right to enforce this License will not include any circumstance where the Original Developer is a necessary or indispensable party or is otherwise required to be a party to an action or other proceeding. Simply because a license says that doesn't mean the court will allow the licensee to have standing to sue under the copyright. The relevant language appears to be 17 USC 501(b): (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright. I read the second and third sentences to mean only that, for example, if the beneficial owner sues, the court may require joinder of the legal owner, or of anyone else owning an exclusive right under the copyright. The rule for intervention is: "Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." F.R.C.P. 24(a). If a contributor grants you a license to his Contributed Code under the GPL, then you have the right to use that code as part of a derivative work including your own code, as long as your Larger Work is also licensed under the GPL. Why isn't that sufficient? This is a crux question: is the GPL in and of itself sufficient protection to both contributors and code maintainers, including in the instance of a corporate code maintainer, or isn't it: To be sufficient, or not to be sufficient. That is the GPL question. I, too, await the wisdom of others on this point. /Larry Rosen
Re: OpenSales -- DRAFT developers agreement
On Thu, 31 Aug 2000, John Cowan wrote: Yeeargh! You want me to assign all rights to you forever for ZERO compensation? It's not too often one has to sign a contract in order to make a donation. Copyright remains with you. Maybe in name, but not necessarily in action. If I should later want to relicense my own code I am unable to do it. What if I would want to relicense it under the LGPL because of its library-like nature? Or what if I decided that my software should not be owned and wanted to release it under the public domain? Although their preamble is not legally binding, I find it a fascinating snapshot of their intent with the agreement: "You desire to _forever_ license all of your Contributed Code ... under the terms of the GNU GPL." Forever is a hell of a long time. Equally fascinating is that you must agree to all terms and conditions of the GNU GPL, yet none of those conditions applies to the original developer! -- David Johnson _ http://www.usermode.org
Re: OpenSales -- DRAFT developers agreement
On Thu, 31 Aug 2000, [EMAIL PROTECTED] wrote: This is a crux question: is the GPL in and of itself sufficient protection to both contributors and code maintainers, including in the instance of a corporate code maintainer, or isn't it: Let's dig a little deeper for an even more important question. What is it as code maintainer do you want protection from? Protection from the contributor? Thinking about his whole agreement overnight, I have my own question. Why not just ask for a simple copyright assignment, then your agreement really can have consideration, as a promise to keep the code under the GPL. -- David Johnson _ http://www.usermode.org
Re: OpenSales -- DRAFT developers agreement
On Thu, 31 Aug 2000, [EMAIL PROTECTED] wrote: Our intent is that this is possible for you. The concern is that the original grant under GPL not be revocable. What the original author does in subsequent distributions or with subsequent derivatios of their own work (independent of any additional code of OpenSales or other authors) is not meant to be encumbered. If language should be clarified or modified to this extent, please offer your suggestions. As I understand it, the license cannot be revoked on public GPLd code. Once you get the GPLd contribution, your copy is always under the GPL as long as you follow the terms and conditions. Even if the original author re-releases it under another license or assigns the copyright away, your copy is still under the GPL. I would change it to a simple notice that OpenSales only accepts GPLd contributions, that there will be no compensation, and your liability disclaimer. Anything beyond this is superflous based on your above intentions. After all, it is the contributor that is licensing the code to you, and not the other way around. There is no need for an additional agreement, license or contract beyond the license of the code in question. Parts of section 4 (Your Representations and Warranties) of your agreement might be useful for you, but you can always sue for misrepresentation with or without them. -- David Johnson _ http://www.usermode.org
