The Fiduciary License Agreement

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 here.

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 experience.

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:

Do you have to choose the GPL or LGPL to make use of the license? Coughan:

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 form;

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. The license itself says this:

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 publicly defined 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 February 1.