Wednesday 8 April 2009 by Bradley M. Kuhn
Dave Neary found me during breakfast at the Linux Collaboration Summit this morning and mentioned that he was being flamed for a blog post he made, Copyright assignment and other barriers to entry. Or, as some might title it in a Computer Science academic tradition: Copyright Assignment Considered Harmful. I took a look at Dave's post, and I definitely think it's worth reading and considering, regardless of whether you agree with it or flame it. For my part, I think I agree with most of his points.
One of the distinctions that Dave is making that some might miss is the difference between non-profit, community-controlled copyright assignment assignees and for-profit copyright assignees. He quotes Luis Villa to make the point that companies, ultimately, aren't the best destinations as a final home of FLOSS copyrights. If copyright assignment is looked only through the lens of a for-profit corporate entity — with only the duty to its shareholders to determine its future — then indeed it's a dangerous situation for many of the reasons that Dave raises.
I believe strongly that assigning copyright to a for-profit corporate entity is usually problematic. As Dave points out, corporations aren't really community members proper of a Free Software community; rather, their employees typically are. I have always felt that either copyrights should be assigned to a transparently-run non-profit 501(c)(3) entity, or they should be held by individual contributors. Indeed, the Samba project even has a policy to accept absolutely no corporate copyrights in their codebase, and I would love to see more projects adopt that policy.
I trust 501(c)(3) non-profits more than for-profits not only because I've spent most of my career in the former, and have enjoyed that time more than my time at the latter. I trust non-profits more because their charters and founding documents require a duty to a public-benefiting mission and to a community. They are failing to act properly under their charters if they put the needs of a for-profit entity ahead of the needs of the community and the public. This is exactly the correct alignment of incentives for a consolidation of FLOSS copyrights.
Some projects don't like centralized copyright for various reasons. While I do prefer it myself, I can understand this desire among individuals to each keep their stake of control in the project. Thus, I don't object to projects that want each individual contributor to have their own copyright. In this situation, the incentives are still properly aligned, because individuals who helped make the project happen have the legal control. While these individuals have no required commitment to the public good like a non-profit, they are members of a community and are much more likely to put the community needs above the profit motive that controls all for-profit entities.
When Dave says copyright assignment might be harmful, he seems to talk primarily about for-profit corporate assignment. I agree with him on that point. however, when he mentions that it's unnecessary, I don't completely agree, but he raises well the points that I would raise as to why it's important.
However, in the middle of Dave's post is the bigger concern that deserves special mention. The important task is keeping a clear record of the copyright provenance about where the work came from, and who might have a copyright claim. Copyright assignment is a short-hand way to do this in an organized and clear fashion. It's a simple solution with some overhead, and sometimes projects over the years have been annoyed with (and even ridiculed) that overhead. However, the more complex solutions have overhead, too. If you don't do assignment, you must keep careful track of every contributor, what their employer agreements say, and whether they have the right to submit patches under their own copyrights to the project. Some projects do this better than others.
Regardless, all of this is hard work. For years, I've seen it as a personal task of mine to help develop systems and recommendations that help make either process (assignment or good copyright record-keeping) less burdensome. I haven't worked on this task as much as I should have, but I have not forgotten that it needs attention. I envision integrated hooks and systems with revision control systems that help with this. I think we eventually need something that makes it trivial for hackers to implement and easy to maintain. I understand that the last thing any Free Software hacker wants to do is sit and contemplate the legal implications of contributions they've received. As such, all of us who follow this issue hope to make it easier for projects to do the work. In the meantime, I think discussion about this is good, and I'm thankful for Dave to raising the issue again.
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Both previously and presently, I have been employed by and/or done work for various organizations that also have views on Free, Libre, and Open Source Software. As should be blatantly obvious, this is my website, not theirs, so please do not assume views and opinions here belong to any such organization. Since I do co-own ebb.org with my wife, it may not be so obvious that these aren't her views and opinions, either.
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