LWN: Comments on "When does the FSF own your code?"

Not really a beat-up

ARealLWN — 2013-04-03T16:32:16+00:00

IMHO I didn't feel the article was really a beat-up. It might have brought up issues that have been raised before but I feel that those might be seen in a different light given the recent events mentioned. I do feel that "The question at what point submissions can be revoked is a general one, not tied to CLAs, and it's come up in the past" is indeed a valid point but I also feel that copyright assignment and when it occurs is an important issue which is worth mentioning when it arises. Please forgive me if I repeated myself in this post.

Consideration

nix — 2013-03-31T19:15:09+00:00

Oh. I might have got a sticker or something, but if so it was so 'valuable' that I entirely forgot about it :)

Consideration

rleigh — 2013-03-30T17:15:50+00:00

I got a GNU sticker with the reply for each of my assignments, which I assumed was the "consideration".

When does the FSF own your code?

JanC_ — 2013-03-29T22:15:30+00:00

I don't think the owner of the exploitation rights can prevent you from using it personally: even if your author's rights won't allow it (which I doubt), you have a "legally obtained" copy already, and "fair use" allows you to use it.

Consideration

nix — 2013-03-29T15:40:13+00:00

Well, I'm in the UK, and got the 'consideration' note in my assignments, but nothing actually accompanied it. I thought that was fishy at the time, but what the hell I have a patch to submit. :)

Consideration

SEMW — 2013-03-29T11:02:05+00:00

Not all legal systems need consideration for a contract. It's possible it's only common law countries (US, England, Canada, India etc.) that need it, I'm not sure (I'm not familiar with any civil law systems). If so would that be consistent with your experience?

Consideration

nix — 2013-03-28T20:21:46+00:00

They certainly don't do that for everyone. Maybe only people within the US?

When does the FSF own your code?

Dahoon — 2013-03-28T16:59:08+00:00

That Stallman is a wise man - and also correct on the subject discussed in the link - would be a good start (:

Consideration

foom — 2013-03-28T14:35:29+00:00

> (Or do they? Do the FSF mail cheques for $1 or something for signing their CLA?)

They actually mail you a USD $1 bill, last I checked.

Consideration

SEMW — 2013-03-28T03:40:41+00:00

> For good and valuable consideration, receipt of which I acknowledge

Given that the FSF presumably doesn't give consideration for code contributions in general , how could that provision do anything?

IANAL (yet), but at first glance, I don't see how asserting that there's consideration, if there actually isn't, could be effective. Trying to contract out of the consideration requirement is circular - without the consideration there isn't a valid contract in the first place. (For that you need a deed). And asserting in the contract that there was consideration had and received surely isn't itself evidence of that, a court'll ask what the consideration actually was.

(Or do they? Do the FSF mail cheques for $1 or something for signing their CLA?)

The only way I can see that sentence working is some kind of estoppel by representation (the contributor represents he's been given consideration and the FSF relies on that to their detriment, so the contributor is estopped from denying that he got consideration). But that seems like a dubious argument given that the representee here knows the rep is false.

Actual lawyers (or anyone more familiar with the effect of that wording): what am I missing here?

When does the FSF own your code?

rickmoen — 2013-03-27T05:44:36+00:00

Jonathan wrote:

One could argue that he is almost certainly wrong and should be dismissed as an obvious troll, but there is still an interesting point raised by this discussion.

Under USA statutory law, "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent" (17 U.S.C. section 204(a)). So, it seems reasonable to conclude that formal title passes precisely whenever that signed note or memorandum gets written and conveyed from donor to recipient.

I don't believe the question of whether Jambunathan's work has yet been redistributed by the recipient has any bearing whatsoever on the ownership question, and don't understand why this is being asserted or debated. It has no obvious relevance.

(The statute's phrase 'by operation of law' encompasses situations like inheritance or various other possibilities other than a sale or donation.)

Best Regards,
Rick Moen
rick@linuxmafia.com

When does the FSF own your code?

alvieboy — 2013-03-25T19:51:48+00:00

"Stallman Calls Ubuntu Spyware; Asks FLISOL Not to Recommend It at Events in South America"

http://www.groklaw.net/article.php?story=20130324114340352

what can I say ?

contributions without copyright assignment

giraffedata — 2013-03-22T22:06:25+00:00

A contributor commits code to one of the version-control repositories of those projects. As soon as this was done, the code is already published. He can't (legally) retract the code that was published (Right? AINAL). You don't need any extra permission from the author to use that code.

I've always wondered about that.

I don't think "published" affects anything at all except for when the clock starts for copyright expiration.

I like to think that when someone sends a patch to a project mailing list and says, "here's a patch," but does not mention copyright at all, that there is some kind of copyright assignment or license implied, but I wonder just what, and a part of me says that under those circumstances, the project has no rights at all.

I've heard of companies that immediately delete patches sent to them for their non-open-source products for fear of violating copyright by even accidentally using them.

A bit of a mountain out of a molehill, I think.

rusty — 2013-03-22T04:21:56+00:00

Your article *was* something of a beat-up, Jon.

The question at what point submissions can be revoked is a general one, not tied to CLAs, and it's come up in the past (eg. in Samba). The musing about whether the FSF owns copyright on stuff you haven't submitted seems both unimportant and an invitation to armchair lawyery.

Now, I don't like CLAs either, but this didn't really add any useful data. It read more like FSF-baiting :(

Cheers,
Rusty.

A bit of a mountain out of a molehill, I think.

bkuhn — 2013-03-21T13:53:28+00:00

Jon Corbet wrote:

how about the simple case where you want to own the copyright to your own code?

Then don't sign the copyright assignment form in the first place, and cancel it if you change your mind.

"I wouldn't want the FSF to claim ownership of code I never intended to submit to it" is such a hard thing to understand?

This is the question that RMS said himself needed further study. I can't speak for him — nor am I privy to any internal FSF discussions on this issue at this point — but I'd suspect that FSF would want to figure out a way to be flexible if possible. Indeed, I am privy to many discussions inside FSF that have been ongoing about trying to be more accommodating to the needs of contributors to FSF-copyrighted projects. However, these questions and issues are complex, FSF is a small and underfunded org with a very small staff, and therefore FSF can't change complex, time-honored policies quickly like a wealthy, for-profit company could with lots of resources to hire a team of lawyers to study complex legal questions. Most of FSF's lawyers, by contrast, are pro-bono and don't always have time to spare to give advice.

A bit of a mountain out of a molehill, I think.

bkuhn — 2013-03-21T13:47:27+00:00

Rich wrote:

That's a very different response to the one that was given to the gnutls maintainer.

Rich, I believe that you're conflating two different issues: one is about a copyright assignment and the other is about a formal volunteer role with the GNU project.

A bit of a mountain out of a molehill, I think.

richmoore — 2013-03-21T12:40:01+00:00

> It sounds to me like Jambunathan is exploring whether or not he wants to
> cancel this assignment. That's his right,

That's a very different response to the one that was given to the gnutls maintainer http://lwn.net/Articles/529560/

Rich.

When does the FSF own your code?

hummassa — 2013-03-20T19:01:26+00:00

> IANAL but I know my employment contract says all the rights, including the moral ones, belong to them.

Do you live in the US? In our law (and in the Geneva internation author's rights convention IIRC) it is stipulated that moral rights are inalienable. You are not permitted to transfer them at all.

When does the FSF own your code?

dps — 2013-03-20T16:06:56+00:00

IANAL but I know my employment contract says all the rights, including the moral ones, belong to them. The propaganda I have heard it that this is standard language and whoever wrote that contract presumably *is* a lawyer.

Many other organisation have similar rules: if you, as a student, do something of commercial value at a university then expect them to take at least a substantial cut of any profit derived from it. I expect that is enforcible.

I have raised this matter and said that presumably my employers don't want to do anything to prevent their employees improving their qualifications.

Almost everywhere if you transfer a transferable right then you don't have it any more. Ergo a right transferred to the FSF belongs to them.

When does the FSF own your code?

ndk — 2013-03-20T13:58:10+00:00

> Interesting that there's no discussion of the correct ethical response, which would be to agree to the request. The change is yet to be formally released, so agreeing doesn't harm others by removing a feature they were relying upon.

That's not true: the ODT exporter was released a long time ago and is part of the Org mode that's distributed with emacs. What happened now was a rewrite of the low-level parsing code, and a rewrite of the export engine. That required the exporters (including the ODT exporter) to be rewritten if they wanted to take advantage of the new export engine. It's this version of the ODT exporter (and the rewritten HTML exporter) that is at issue.

It's conceivable that somebody could still use the old ODT exporter, but that is no longer maintained and would bit rot quite fast (if it has not done so already.)

So people *are* relying on the feature.

A bit of a mountain out of a molehill, I think.

corbet — 2013-03-20T12:47:43+00:00

Bradley, how about the simple case where you want to own the copyright to your own code? Or what if you want to contribute it to a different project which also requires copyright assignment? I don't get why "I wouldn't want the FSF to claim ownership of code I never intended to submit to it" is such a hard thing to understand?

As for why I used this example, that is easy: because it was there and easy to understand. Even a gadfly might raise an interesting issue.

When does the FSF own your code?

Tobu — 2013-03-20T12:19:55+00:00

This Jambunathan fellow didn't request that the code be removed, he just wanted to know how annoying that would be. I'm sure he would also see himself as a victim if the FSF pre-emptively stopped publishing it without his say-so. It would be funny, albeit annoying to other users.

When does the FSF own your code?

tzafrir — 2013-03-20T10:35:22+00:00

Consider a different case: Author writes some code for a kernel Org module. The code gets submitted into the git tree of a subsystem maintainer, but before it gets pushed to the main Linus tree, the Author decides it is not good and should be retracted.

Suppose someone else does like the code and steps up to maintain it (so it's not an issue of unmaintained code). In that case the code may still get included in Linus' tree. The credit for writing it will still go to the Author.

So why is that case different?

When does the FSF own your code?

mpr22 — 2013-03-20T08:50:33+00:00

Not everywhere that has moral rights legislation has the "droit de retrait et de repentir", though.

When does the FSF own your code?

ewen — 2013-03-20T08:25:31+00:00

For the benefit of other travellers, these appear to be the two most easily found summaries, one from 2004 and one from 2007. Quick skim reading suggests that the code was "less contributed" in that case (eg, not submitted at all) than in this one (posted for inclusion, but not included in an actual official release yet). So those two situations could be distinguished from one another, on that basis, were one inclined to do so. (But as this article points out, a literal ready of the contributor agreement might say something else again, from what the common practice has been, which may arguably cover both situations.)

Ewen

When does the FSF own your code?

JoeBuck — 2013-03-20T03:13:59+00:00

I think that you are confused. The only freedom at risk here is the alleged freedom of a developer to take back code that he already promised to give, just to be a jerk (he openly admits that he wants to make life worse for other developers).

In countries that separate moral rights from economic rights, the FSF transfer agreement transfers only the latter, and furthermore they grant back the code to the author, so he/she can still use that code in a proprietary app or whatever. But your misunderstanding of what is going on has evidently led you to believe that there is some monstrous abuse taking place, though you don't seem to be clear on what that is.

This is hardly a unique situation: if you publish a paper in a scientific journal, with very rare restrictions you are forced to sign a grant of rights that is far less friendly to the author than the FSF's terms are.

When does the FSF own your code?

brooksmoses — 2013-03-20T02:04:28+00:00

You might want to look up the history of Andy Vaught, G95, and the GCC GFortran front-end fork before making that claim.

When does the FSF own your code?

neilbrown — 2013-03-20T00:46:36+00:00

Chuckling to myself that if it is "droit moral" on the one hand, then maybe it should be "gauche patrimonial" on the other ... abusing language is so much fun.

When does the FSF own your code?

marcH — 2013-03-20T00:29:47+00:00

There is similar and very common confusion in French: "Copyright" is almost always translated to "droit d'auteur" but this translation is inaccurate.

Just like pretty much everywhere else there are two quite distinct types of "droits d'auteur": the "droit moral" on one hand and the "droit patrimonial" (basically: usage/economic rights) on the other hand. The former is indeed inalienable and perpetual but the "right to copy" is only relevant to the latter.

Unlike German ones, French speakers don't have the excuse of confusing names yet most people only ever heard about the very general "droit(s) d'auteur".

While there seems to be some minor differences all this is surprisingly consistent across the world; probably thanks to the Berne convention.

When does the FSF own your code?

gdt — 2013-03-19T23:52:19+00:00

Interesting that there's no discussion of the correct ethical response, which would be to agree to the request. The change is yet to be formally released, so agreeing doesn't harm others by removing a feature they were relying upon.

From a legal perspective it's simple enough to see the likely arguments for both parties.

The broad language of the Contributor Agreement is admitted by the FSF to be intentionally ambiguous. You'd argue that ambiguity-as-a-legal-strategy must benefit the non-drafting party to the utmost; that is, the CA doesn't take effect until the FSF accepts the contribution for formal distribution. You might go as far to argue that the Contributor Agreement is deceptive -- the effect is that copyright in derivative works passes to the FSF on the creation of the work, but the CA obfuscates that with admittedly-ambiguous language.

I'd be surprised if the argument succeeded, simply because the counter-argument is "what was the intent of the contributor when they e-mailed the change to the Org list?" I'd think that a fact-finder would readily agree that the intent of e-mailing a contribution to a mailing list where contributed software is received is to activate the Contributor Agreement if it were not already activated sooner.

The whole point of agreements is to prevent the need to ask a court for clarification. In this way the deliberate ambiguity by the FSF in its Contributor Agreement is abusing its ready low-cost access to legal representation compared with the other party to the Agreement. Which brings us back to my opening point of the need for a ethically-founded organisation to act ethically rather than the to maximum legal claim.

When does the FSF own your code?

drago01 — 2013-03-19T23:09:58+00:00

OK if you look at it that way it makes sense but I'd rather spell out what is meant in a contract rather then hopping that a judge gets the intent right ;)

When does the FSF own your code?

Seegras — 2013-03-19T22:53:21+00:00

Yes and no. There are actually two rights: "Urheberrecht", which basically is only the right to be attributed, and "Nutzungsrecht", usage right, which covers everything else. To confuse things, both are lumped into a corpus of law generally called "Urheberrecht".

The first one can't be transferred. At all. Not even with heritage, since you can't claim you wrote it, when your father wrote it.

However, the whole discussion (and all the controversies) are about the second one, the usage rights.

A bit of a mountain out of a molehill, I think.

bkuhn — 2013-03-19T21:40:25+00:00

Jon Corbet wrote:

by signing the FSF's agreement, one may be giving away ownership of code that was never intended to be submitted to the project, and even RMS can't say where the boundaries are. The FSF's "liberal license grant-back" (30-day notice required) may be cold comfort in such cases. I believe that issue is worthy of attention and discussion.

Difficult questions about scope of copyright are always likely to receive a give us a chance to think about it answer from the FSF. I'm sure everyone would prefer that the FSF continue its consistent care whenever providing an answer to such questions. It's one of the ways the FSF has maintained its clarity and consistency on these issues for so many years. There are people (whom we both know) will give rash answers and unresearched answers to such questions on mailing lists. FSF folks aren't among them.

The FSF's "liberal license grant-back" (30-day notice required) may be cold comfort in such cases.

I'd note your article doesn't say which cases you're talking about here where the license grant-back wouldn't solve the perceived problem. AFAICT, (and admittedly IANAL and TINLA), about the only thing one can't do with the license grant-back is enforce the copyright license itself (e.g., enforce the GPL). There's been a debate about the question of assignors wanting to take back GPL enforcement for themselves instead of entrusting FSF to do it, but if you're trying to relate this discussion to that one, you're being awfully (and unnecessarily) circumspect about it.

And, if we're talking future works, the author could cancel the agreement anyway for future works, and then have copyright control going forward regardless.

What Jambunathan is exploring is how he can stir the anthill, make a mess, and get attention. That's not really relevant here either.

If you believe that it's not relevant, I'm now pretty confused why you'd use it as the primary example in your article at all. I understand you want to raise an important issue, but why use an example that you agree is designed to make mountains out of anthills (to mix our two metaphors fully :).

A bit of a mountain out of a molehill, I think.

ewan — 2013-03-19T21:35:49+00:00

True, but it is emacs, and that project requires a copyright assignment. If the author can withdraw that assignment, the project (and everyone else) would still have the right to use the code under the relevant Free software licence, but this project would have to reject it, or waive it's own rules on requiring assignment, so in this case it makes a difference to the project.

A bit of a mountain out of a molehill, I think.

tzafrir — 2013-03-19T20:56:25+00:00

I'm not sure I follow.

Suppose this was not Emacs. Suppose this was KDE (copyleft, no copyright assignment) or Xorg (non-copyleft).

A contributor commits code to one of the version-control repositories of those projects. As soon as this was done, the code is already published. He can't (legally) retract the code that was published (Right? AINAL). You don't need any extra permission from the author to use that code.

A bit of a mountain out of a molehill, I think.

bronson — 2013-03-19T20:23:06+00:00

I thought the article illustrated the concerns well, and even reiterated them in the concluding paragraph. Not sure why Bradley's response missed them entirely.

Personally I'm really glad the article didn't "reiterate the advantages of assigning to FSF to developers." Even if the grumpy editor could make it interesting (it's possible!), that's hardly news.

When does the FSF own your code?

alvieboy — 2013-03-19T20:06:44+00:00

I've contributed a few times for the FSF effort in the past, and I am author of several projects released under open-source licenses, mostly BSD and GPL (v2). I'm proud of my contributions for the free software effort, but, frankly, I'm about to decline any more contributions for the foundation. I'll still release open source software and hardware, because I personally feel that there's a higher chance of my projects to survive if I do, and because I always have benefited from open-source projects, like GNU, the Linux Kernel, and other thousand more projects.

I was not aware of these restrictions to developer freedoms by the very own FSF - which claims everything should be free as in speak. What I read here is that not even the contributors get to hold any rights to *their own* ideas, code, and contributions generally speaking.

I am a fierce defendant of the individual rights. I am a strong defendant of the community progress by individual contributions, but *never*, *never* to put the individual rights in jeopardy.

You cannot transfer authoring rights in most Europe, because if you did, it would be catastrophic. Each photo is (C) its photographer, each song is (C) it's author, although the *usage rights* of the author's outcome can (and, IMHO, should not, but nevermind) be transferred to another entity (the newspaper you work for, your music editor and distributor). If, as it is right now, the music composers receive close to nothing for their creative work, imagine what would be if they gave *all* the rights to the music editors. Not only they would receive close to nothing, probably would have to pay for having their creative work on the shelves.

I am in strong disagreement with FSF, and I blame Stallman for it. I am not willing to contribute (money and moral support) to a foundation that does not respect its members, and their individual rights.

Perhaps it's time to throw a little revolution inside FSF. Or a big one.

(sorry for bad english)
Alvie

When does the FSF own your code?

hummassa — 2013-03-19T19:58:16+00:00

Down here (Brasil), our Author's Rights Law says that an author or its successors can transfer all rights given by the same law, except the moral rights (basically assignment, like the right to have your name cited when your work is cited and the right to have your name excluded when the execution of your work modifies it, among others).

When does the FSF own your code?

niner — 2013-03-19T18:16:59+00:00

You should probably talk to a lawyer about this some time. While it's true that in German and Austrian law, you cannot transfer copyright (Urheberrecht to be precise), any judge would simply ask the question what was meant by "assign my copyright". And it's very obvious that the owner wanted to give the Werknutzungsrecht (in Austria, Nutzungsrecht in Germany) to the recipient. And that's an unlimited exclusive license that effectively transfers all rights.

The only right one really cannot transfer is the right to claim authorship. So you may still say that you have written the thing, but you may not even use it without permission of the new rights holder.

IANAL myself, so really, ask a lawyer :)

Contribute statement says it is automatic if assignment papers exist

southey — 2013-03-19T17:18:18+00:00

According to the How to contribute to Org? page, unless that code is just in the contrib/ part of repository excluding the contrib/ part then the copyright has already been assigned. Granted that it is not in writing but page does say (emphasis added):

If at the time you submit or push these changes you do have active copyright assignment papers with the FSF, for future changes to either Org-mode or to Emacs, this means that copyright to these changes is automatically transferred to the FSF. The Org-mode repository is seen as upstream repository for Emacs, anything contained in it can potentially end up in Emacs. If you do not have signed papers with the FSF, only changes to files in the contrib/ part of the repository will be accepted, as well as very minor changes (so-called tiny changes) to core files. We will ask you to sign FSF papers at the moment we attempt to move a contrib/ file into the Org core, or into Emacs.

If the code is in the contrib/ part of the repository then the copyright assignment must depend on the actual agreement signed. Also that code would be still covered by the GPL so that the code could be distributed.