On Thursday, February 1, the Free Software Foundation Europe (FSFE) is
releasing a new license and with it an
offer to help FOSS projects deal with copyright issues.
The license is called the Fiduciary License Agreement (FLA), and it's a new
type of copyright assignment agreement, designed to be effective
internationally, whereby a project with many authors can designate FSFE or
a single organization or individual as the copyright holder, while
maintaining complete autonomy as far as project management otherwise.
Projects may apply to be accepted by FSFE's Fiduciary Project, whereby
copyrights and the responsibility to protect and enforce them are turned
over to FSFE. Bacula.org and OpenSwarm are examples of projects already
accepted into the program. You can see that version of the FLA
Alternatively, projects can use the newly released license, choosing
another entity - such as a foundation it sets up itself - or designating one
individual to hold the copyrights. FSFE's Freedom Task Force is
willing to help projects with that too as far as sharing insights and their
What need does the FLA license fill? I see several. First, it's
international, not US-centric.
Second, maybe you don't have a lawyer on call. Maybe
you are among those who just don't want to think about legal things and or
realize you are not equipped financially or legally to handle that task
yourself. Then you may wish to apply for the FSFE's Fiduciary Project.
You retain rights to the management of the project. But they have the
headache of license compliance enforcement.
Third, it's of interest to projects that have more than one author and are
concerned about the future (what happens if one of the authors dies,
leaves the project, etc.?) but for any number of reasons the authors
don't want to assign copyright to the Free Software Foundation or don't
want to be a GNU project under that umbrella. In countries where such
terms are allowed, it's designed to "be
temporally unlimited" so once the agreement is signed, future
contributions, such as patches, are covered.
An important purpose of the license is to ensure project survival. Shane
Coughan, coordinator of the Freedom Task Force confirms that one goal is to
make sure people think about and plan for the possibility that a project
might have to withstand a legal attack, but as to which of the two ways to
use the license a project should choose, he says that FSFE is neutral:
Deciding which approach is best for a project depends on many different
factors and always boils down to individual circumstances. Ideally,
organsations handling these issues should be non-profit and have a clear
primary focus on Free Software.
Do you have to choose the GPL or LGPL to make use of the license? Coughan:
The FLA allows fiduciary activity with all types of Free Software
licenses, though naturally the GNU GPL is our preferred license.
There is a list of Free Software licenses here.
Some issues you may wish to consider: The FLA is a one-time copyright
assignment (or in countries where that isn't possible, like in Germany,
Austria, Slovenia and Hungary, an exclusive license grant) worldwide.
The grant reads that the beneficiary assigns the following rights:
a) the right to reproduce in original or modified form;
b) the right to redistribute in original or modified form;
c) the right of making available on data networks, in particular via the
Internet, as well as by providing downloads, in original or modified
d) the right to authorize third parties to make derivative works or to work
on and commit changes or perform this conduct themselves.
There are countries where you can't assign copyright in a future work,
France, for example. In such a country, I'm told a project would need to
work out a strategy to deal with that restriction. As just one example,
authors might assign each patch as it is contributed.
The authors' "moral or personal rights remain unaffected" by the agreement.
Also, "modifications that are not derived from the subject matter and that
have to be regarded as independent and original software" are excluded from
the agreement. In some countries, an employer is deemed
to be the owner of the rights on materials developed by an employee in
the course of his or her employment, unless the parties have agreed
otherwise, so there is language that authors acknowledge that he or she is
aware of that and
"warrants, represents and guarantees" that the materials are "free of
any of his or her employer's exclusive exploitation rights."
What FSFE, or the designated entity, gets is the authority to "enjoin third
parties form using the software and forbid any unlawful or copyright
infringing use of the Software, and shall be entitled to enforce all its
rights in its own name in and out of court." The authors keep a
"non-exclusive, worldwide, perpetual and unrestricted license in the
Software," which includes all the rights, listed above, and FSFE or the
entity grants the authors "additional nonexclusive, transferable license
to use, reproduce, redistribute and make available" the software "as needed
for releases of the Software under other licenses."
Some may not feel comfortable with any copyright assignment, but with
projects with many authors, it's a matter of deciding which kinds of
problems you'd rather deal with. The Linux kernel specifies "GPLv2 only" to
keep control over licensing decisions. The same kinds of concerns that
might come to mind with regard to a license will likely also be considered
when it comes to a copyright assignment to another entity. On the other
hand, that same restriction is what left the kernel in a position where it
would be a great deal more difficult to upgrade the license even if desired.
itself says this:
FSFE shall only exercise the granted rights and licences in
with the principles of Free Software. FSFE guarantees to use the rights
and licences transferred in strict accordance with the regulations
imposed by Free Software licences, including, but not limited to, the
GNU General Public Licence (GPL) or the GNU Lesser General Public
Licence (LGPL) respectively. In the event FSFE violates the principles
of Free Software, all granted rights and licences shall automatically
return to the Beneficiary and the licences granted hereunder shall be
terminated and expire.
Some questions come to mind. What principles, precisely? How would you
know when they are violated if they are not listed? We certainly have some
guidance. The Free Software Foundation Europe is committed to following
principles. The Free
Software Foundation Europe (FSFE) is a non-profit and (in some
countries) a charitable non-governmental organization dedicated to Free
Software as in freedom, so that restricts what it can and can't do. Their
principles are listed here and
in a longer version here.
I would assume, then, that a violation of the principles of Free Software
would be any action undertaken with the intent to violate one of the famous
four software freedoms. But if one has concerns about assigning copyright,
then it's something to factor in to the decision. Legally, FSFE could do
things it almost certainly never would, such as relicense. If you have
control issues, the best thing would be to seek legal advice. That's
always good advice anyway. And some may choose to set up their own
foundation, to establish certain ground rules of their own, for that very
reason. The choice is yours.
Finally, if you choose to assign copyrights to FSFE, German law applies to
the agreement as the default, unless otherwise negotiated, and any
conflicts would have to be settled in Munich.
The license is being released under the GNU Free Documentation License
(GFDL) and the Creative Commons Attribution/Share-alike (CC by-sa)
licenses. The FLA was written by Dr. Axel Metzger (ifrOSS) and FSFE in
consultation with other international legal and technical experts, and the
final version was then compiled by Georg Greve, president of the Free
Software Foundation Europe (FSFE) and Shane M Coughlan based on feedback
provided by Dr. Lucie Guibault of the Institute for Information Law in the
Netherlands. The final text of the license is expected to be released on
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