Project Harmony decloaks [LWN.net]

Project Harmony decloaks

Posted Apr 12, 2011 17:17 UTC (Tue) by wahern (subscriber, #37304)
In reply to: Project Harmony decloaks by pboddie
Parent article: Project Harmony decloaks

The law that governs joint works is almost entirely Common Law. The 1976 Copyright Act punted because the issues become extremely complex. The House Report on S. 201 (Ownership of Copyright) had this to say:

There is also no need for a specific statutory provision concerning the rights and duties of the coowners of a work; court-made law on this point is left undisturbed. Under the bill, as under the present law, coowners of a copyright would be treated generally as tenants in common, with each coowner having an independent right to use or license the use of a work, subject to a duty of accounting to the other coowners for any profits.

As far as I remember the only portion of the Copyright Act which has anything substantive to say is the definition of a joint work in section 101:

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. 17 U.S.C. 101.

But you have to understand that there are "joint works", "collective works", "compilations", "works for hire", and a host of other legal definitions that touch upon how rights are apportioned. What you describe is more like a collective work, but it's certainly possible to have a joint, collective work. Whether something is or is not a joint work can be an extremely contentious issue among judges and scholars alike.

(I have a PDF of Title 17, including all the committee commentary, that I found on a Congressional FTP server. I don't have the link anymore, though.)

The best case I can find on the subject of joint work licensing says:

A co-owner may grant a non-exclusive license to use the work unilaterally, because his co-owners may also use the work or grant similar licenses to other users and because the non-exclusive license presumptively does not diminish the value of the copyright to the co-owners. Davis v. Blige, 505 F.3d 90, 100 (2d Cir. 2007)

The court goes on to explain that to grant an exclusive license the co-owners must [unanimously] agree. (If I said majority earlier I got that wrong, it seems.)

The reasoning and dicta in that case actually bolsters my point. It involved a joint work where one co-owner tried to retroactively grant a license to an infringer. The appellate court wouldn't allow it for all the obvious, intuitive reasons (notwithstanding that the trial court bought the argument). But my argument isn't about retroactive licensing, it's about prospective licensing to cut off injunction. I didn't spot any citations or holdings on foreclosing injunction, but it stands to reason and it's entirely in harmony with the 2d Circuit's explication.

But I AM NOT A LAWYER, and I'M NOT GIVING LEGAL ADVICE. I'm just a programmer and law school student. Needless to say, if you ever have a serious legal question, talk to a practicing attorney. At least they have insurance you might be able recover against if they screw up.

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Co-owners?

Posted Apr 14, 2011 14:19 UTC (Thu) by david.a.wheeler (subscriber, #72896) [Link]

I'm not a lawyer, but I can throw in my two cents.

I suspect that the Linux kernel is NOT an example of co-ownership in the legal sense. I think co-ownership means that multiple people JOINTLY hold the copyright to the same larger work. But that's not the case here. Copyright can only be assigned to someone else (including a group) by a written agreement, and there's no such agreement in this case. What's more, there are clear records of who contributed what, so at least in principle you can found out who contributed what (see "git blame", though obviously that is imperfect). Therefore, there is no co-ownership. So presumably the copyright for each patch continues to be held by the contributor.

So what we have is a bunch of separate works, the copyright of each is held by different people.

I think this is bolstered by Linus Torvald's statements over the years explaining why he does NOT want copyright assignments. Courts are supposed to examine the intent of the community, when there is one.

But I'm not a lawyer. I'd love to hear what a REAL lawyer would say.

Co-owners?

Posted Apr 15, 2011 15:26 UTC (Fri) by butlerm (subscriber, #13312) [Link]

So what we have is a bunch of separate works, the copyright of each is held by different people.

That may be the case with regard to a module or driver written substantially by one contributor, but it isn't remotely sustainable with regard to unitary subsystems with hundreds of patches from many contributors. By any reasonable standard, for a work to be "collective" rather than "joint", each individual contribution must have some independent merit as a work in and of itself. See the definition of "joint work" in 17 USC 101.

The termination rights issue here is an interesting one, but it is worth noting that termination requires majority consent of those with termination interests in a work. This is unequivocally a good thing.

It means that several decades from now a contributor might be able to terminate a license to a contribution (such as a driver) that has independent merit, but would require tracking down and obtaining the consent of at least a majority of other contributors to terminate an interest in a portion of the total work that many have contributed to. See 17 USC 203(a)(1).

giving legal advice

Posted Apr 15, 2011 22:29 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I'M NOT GIVING LEGAL ADVICE

Sure you are. What else would you call it?

But there's nothing wrong with a nonlawyer giving legal advice. If there were, pretty much everyone would be in trouble.

What you're trying to avoid, because you aren't licensed for it, is practicing law. Giving legal advice is practicing law when you do it in a way that someone could think he's getting professional advice. Having said you're not a lawyer, you've completely covered your ass. But you wasted your time even on that sentence, because nobody has a right to assume a comment from a stranger in a forum like this is professional advice.

Actual lawyers have to be a little more careful in making sure people can separate their professional advice from their other legal advice (because the former carries liability for correctness), but not much. It's usually pretty obvious when you haven't engaged a lawyer.