OSBC, Community Engagement and Contributor Agreements

At the Open Source Business Conference, held in San Francisco this week, I had the opportunity to listen to a panel discussion titled "Company-Driven Communities", moderated by Stormy Peters of the Gnome Foundation. The panel discussion touched on an issue of interest to me, and one which had recently led to some debate at KnowledgeTree.

Having recently had to translate the KnowledgeTree Contributor Agreement into French, we started an internal-to-the-company debate around what measures we could take to reduce the "friction" around the KnowledgeTree community committing contributions. When posing that question to the panel, Dave Neary (Gnome, maemo.org) challenged my assumption that a Contributor Agreement (which typically assigns copyright jointly to the contribution's author and the company or foundation supporting the community) was necessary or desired.

Dave characterized copyright assignment as unnecessary (and I think he also felt it somewhat evil), and challenged me to name a large non-vendor driven community other than the Apache Foundation that required this. I wasn't quite prepared for the argument and thankfully Josep Mitjà from Openbravo, one of the panelists, jumped in and indicated that Openbravo required copyright assignment. Josep's reasons for Openbravo requiring assignment included assisting with their management of the community's IP, and in particular the recent move of the Openbravo code from the Openbravo Public License (a non-FSF approved license) to the GPLv3. This would have been a real challenge if every contributor had to agree to the license change.

While Openbravo certainly is a vendor-driven community, a quick web search revealed the following large, non-vendor driven, open source communities that do require assignment: Dojo Foundation, Mozilla Foundation, Python Software Foundation, Fedora (arguably driven by Red Hat), Apache Foundation, the Free Software Foundation, and many others.

These projects are typically large, organized communities that have a backing foundation that facilitates the activities of the community, of which one activity is managing the community's collective risk. Eben Moglen from the FSF describes the rationale for copyright assignment as follows:

Under US copyright law, which is the law under which most free software programs have historically been first published, there are very substantial procedural advantages to registration of copyright. And despite the broad right of distribution conveyed by the GPL, enforcement of copyright is generally not possible for distributors: only the copyright holder or someone having assignment of the copyright can enforce the license. If there are multiple authors of a copyrighted work, successful enforcement depends on having the cooperation of all authors.

In order to make sure that all of our copyrights can meet the recordkeeping and other requirements of registration, and in order to be able to enforce the GPL most effectively, FSF requires that each author of code incorporated in FSF projects provide a copyright assignment, and, where appropriate, a disclaimer of any work-for-hire ownership claims by the programmer's employer. That way we can be sure that all the code in FSF projects is free code, whose freedom we can most effectively protect, and therefore on which other developers can completely rely.

While the companies driving open source communities share the above concerns, they also face additional customer-centric challenges, including the desire to provide customer indemnification. This can only be done if the origin, and ownership, of all IP is understood, and the company is capable of mounting a credible and timely defense of the IP, achievable only with a copyright assignment practice in place.

ASF does not rquire copyright assignment

December 9, 2009 - 9:19pm — Ross Gardler (not verified)

You say:

"Dave characterized copyright assignment as unnecessary (and I think he also felt it somewhat evil), and challenged me to name a large non-vendor driven community other than the Apache Foundation that required this."

For your information the ASF does not require copyright assignment, their CLA is a licence to redistribute the copyrighted materials.

ASF's Contributor License Agreement

December 10, 2009 - 7:58am — Daniel Chalef

Ross,

While not a "copyright assignment" per se, the ASF's Copyright License Agreement (see excerpt below) has pretty much the same effect.

Best regards,
Daniel

2. Grant of Copyright License. Subject to the terms and conditions of this Agreement, You hereby grant to the Foundation and to recipients of software distributed by the Foundation a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute Your Contributions and such derivative works.
3. Grant of Patent License. Subject to the terms and conditions of this Agreement, You hereby grant to the Foundation and to recipients of software distributed by the Foundation a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by You that are necessarily infringed by Your Contribution(s) alone or by combination of Your Contribution(s) with the Work to which such Contribution(s) was submitted. If any entity institutes patent litigation against You or any other entity (including a cross-claim or counterclaim in a lawsuit) alleging that your Contribution, or the Work to which you have contributed, constitutes direct or contributory patent infringement, then any patent licenses granted to that entity under this Agreement for that Contribution or Work shall terminate as of the date such litigation is filed.

Understnding management of IP is critical

December 22, 2009 - 4:35pm — Ross Gardler (not verified)

There is a world of difference between copyright assignment and copyright licensing. Coming to conclusions about the right way to manage IP in open source products without understand those differences from both a legal and community development perspective is a mistake.

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