Bobulate

A little while back, Michael Meeks published a lengthy piece about copyright assignment (not nearly as lengthy as the articles he links to on untangling Wittgenstein’s net). Go on, read it (Michael’s stuff, not the net). It’s worth your time. When you get to the bottom, follow the link to Dave Neary’s take on assignment as well.

I’m going to take the time to respond to Michael and Dave with two different hats on: my FSFE hat (work-work, where I do legal and licensing stuff in the Freedom Task Force) and my KDE hat (volunteer work, where I have hacked on various bits and pieces for over a decade). This isn’t an entirely independent article on assignment, but looks at their comments on it. First off: there’s no right answer. Just like I say during my licensing talks at conferences: it (licensing or copyright assignment) is a choice that needs to be made, and that choice needs to be compatible with your goals, your morals, your business needs (if any), your sense of community (if any) and your desire to deal with administrative details.

One or two points of fact, though: the FSF does not require assignment — not for all GNU projects, at least. For some, yes. I made this exact same mistake at the GNU hacker’s meeting in Gothenburg last month. After all, it’s easy to find articles stating that the FSF requires assignment — even on the FSF site — and not so easy to find ones that do not. After all, it’s hard to search for the absence of a document. Andy Wingo can probably point out some.

Qt is still subject to a contributor agreement, but it is not a copyright assignment, but rather a license — in other words, the original author retains the copyright but grants the Qt organization (that is, Nokia Oy) a very broad copyright license (including sublicensing) and a patent license (for patents covered by the contribution). There’s some pretend remuneration. There’s little in the way of protection offered to the contributor, but I think it would take some far-fetched scenarios to find a patent danger in there (but do comment on their existence).

Michael’s examination of assignment forms (including Sun’s SCA) is missing one form that is used in Europe (and elsewhere), and that is FSFE’s Fiduciary License Agreement (FLA). This is a copyright assignment form — no patents involved, which makes some sense because there’s no software patents as such in Europe — that assigns those assignable rights to a Fiduciary, and then licenses those rights back. The assignable rights vary a little by jurisdiction (and Europe has lots of them), so that makes the form a little bit longer than it might otherwise be. In addition, there are variations as to whether you can assign future work or not — things like that.

(1) Subject to the provision of § 2, Beneficiary assigns to FSFE the Copyright in computer programs and other copyrightable material world-wide, or in countries where such an assignment is not possible, grants an exclusive licence, including, inter alia:

Here the FSFE is the Fiduciary. The Fiduciary is a party you trust to handle the copyright responsibly. By default you own the copyright — and I assume you trust yourself to do the right thing with licensing on the work you do for yourself — and the rights (most of them, anyway) are assigned to your estate. Presumably you trust your executors to do the right thing as well.

That actually leads into one of the reasons that you might want to think about copyright assignment — or at least about what happens with your code and the rights to your code when you’re no longer actively involved with the Free Software projects you contribute to. It happens — people drop out, no longer want to participate, or indeed pass away. Copyright assignment is one way to manage the risk (and possibly administrative burden) attached to something long-lasting like copyright.

Back to the FLA: the effect of clause 1 is that the Fiduciary gets control over the rights to display, reproduce, distribute, create modified or derived works and to allow third parties to do so. While re-licensing isn’t explicitly in there, the authorization to third parties implies it. There needs to be an exclusive license so that the Fiduciary knows they are the one party who may act as if they hold the rights. So once the Fiduciary has the rights, what happens?

(2) FSFE grants to Beneficiary a non-exclusive, worldwide, perpetual and unrestricted licence in the Software. This right’s [and licence’s] scope shall encompass and include all the rights [and licences] specified in § 1. Furthermore, FSFE grants to Beneficiary additional nonexclusive, transferable license to use, reproduce, redistribute and make available the Software as needed for releases of the Software under other licences. This re-transfer shall not limit the scope of FSFE’s exclusive licence in the Software and FSFE’s rights pursuant to §1.

You get it all back and can continue to license, sublicense, modify, etc. the work. In other words, you can continue to behave almost as if it were still your copyright. This is important because the Fiduciary wants to support the use of the software as much as possible. So you’re even free to create a derivative work and make it available under another license. I have not considered whether it would be possible to release it under a proprietary license — there might be some tricky interactions between the assignment and the re-assignment.

This FSFE FLA is available under a license that allows modification, so you can take the FLA and modify it for your own purposes. KDE has done so. The KDE FLA adds some restrictions to what the Fiduciary is allowed to do in terms of relicensing, but these clauses were added after some lengthy deliberation.

In any case, an FLA is an adaptable mechanism for assigning copyright to a Fiduciary — some party you trust. Just having the tool available doesn’t mean much, though: there are issues of policy as well. To return to the beginning: some projects / organizations have a policy of requiring assignment (though some instrument). Others do not. KDE is unusual in that it makes it possible to assign copyright to the organization, but does not require contributors to do so.

So let’s carry on with Michael’s comments.

To whom are you assigning it? This is a very important question — because you need to trust the fiduciary. Michael points out that a non-profit (association or foundation, with a constitution written to support particular goals) is probably a better Fiduciary than a corporation. The reason for that is relatively straightforward: money. You can buy a company, buying a non-profit is much more difficult. Not impossible, mind you. The FSFE acts as Fiduciary for a few projects. KDE e.V. acts for its own project. When asked, I tend to advise finding an existing trusted party (like FSFE or KDE e.V. or perhaps the Linux Foundation) who is willing to act as Fiduciary (FSFE takes it case-by-case, KDE e.V. is probably most interested in KDE-technology related projects, and I can’t speak for the Linux Foundation but they strike me as a potential partner). Setting up your own organization is possible, but has some costs. Those are costs in filing and administration, in setting up meetings, and providing long-term viability to the organization.

An assignment document should have an escape clause if the Fiduciary turns out not to be faithful (fides is Latin for faithful, more-or-less). The FSFE assignment has such a termination (or auto-revert) clause. So does the KDE one. So does the FSF’s assignment. Michael points out a few others, and such a clause should be seen as an additional form of risk-mitigation

Benefits and risks: Note well that “single owner” and “re-licensing” are listed as both a benefit and a risk. Which is as it should be: a single copyright holder also means a single point of failure (in terms of a take-over) while multiple holders means many points of failure (in terms of necessary re-licensing or negotiation). But a single copyright holder means success because it can manage negotiations, sublicensing, re-licensing and assets (in the sense of “your software has value to its users” even if not monetized) and multiple copyright holders is a success because of its resilience in the face of take-overs and flexibility in accomodating different viewpoints.

Again, it depends on what you think is most important and how you weigh the risks. I like the KDE e.V. approach with a non-profit association that holds a fair amount of the rights — but nowhere near all of them, on any part of the code — and then multiple individual (and corporate) rightsholders. That makes it both resilient and possible to go to court saying “we (KDE e.V.) represent a 30% stake in the copyright in this work”.

That last item relates to “defending the code.” There simply haven’t been enough cases of license enforcement to say whether a centralized copyright holder is useful or not. Harald (through gpl-violations.org) is very successful in enforcement in Europe, but he has rights (including assigned copyright!) to some well-defined and popular pieces of the Linux kernel which are fairly easy to detect. Besides which, not every developer wants to get involved in this stuff, so it might be difficult to find any individual developer to enter into a copyright enforcement suit.

On re-licensing I would add that “license tourism” by a Fiduciary should be avoided, perhaps by wording in the FLA, perhaps in the constitution of the Fiduciary. You don’t want to start with (say) the GPL and end up with the code under something totallylargely incompatible (Artistic). So once again: you need to trust the Fiduciary and set up some policy to make sure it all works.

Barriers to entry: This is, in fact, a biggie. It depends on the community creating the software whether asking or requiring assignment will be a barrier or not. I can imagine that in an established loosely-knit community of individual developers (read: the KDE community) introducing assignment is both scary and seen as a barrier to entry. That’s why you could choose the optional-assignment route, for partial centralization. In a corporate led project, assignment may be much less of a barrier. In mixed settings, I think optional-assignment or a really darn good explanation is needed (an explanation that I won’t be able to provide here, as it depends very much on individual circumstance).

Dave writes very briefly: he refers to assignment as a “superfluous barrier to entry”. I disagree with that — it can be superfluous, or, given explanation and circumstances, can be quite necessary. For a project with a community of individuals with no monetization of the software itself planned and an established brand and a broad scope (e.g. desktop projects) it probably is the former.

It’s at this point — in listing items under barriers to entry — that I feel Michael is lacking clarity. There’s a number of problems listed, in the moral, social and organizational spheres, all of which may influence the influx of contributions and affect user uptake of the software. However, I don’t see how these are specific to copyright assignment. When thinking of participating in a project, “the paralysis of uncertainty” can strike for any of a number of reasons. Licensing? Trademarks? Maybe the project is run by complete jerks only I haven’t realized it yet? Perhaps Mr. Knightly does feel affection for Jane Fairfax, and merely dissembles to poor Harriet Smith as a cover? [Sorry, I’ve been reading Jane Austen’s Emma and it will lead to any number of conspiracy theories.] The same applies to corporate unwillingness and scarcity: these are not issues that are particularly brought to a head by copyright assignment, but always exist in open collaborative projects.

The “death of trust” (gosh, isn’t that a melodramatic title) touches on two issues: the trust expressed (or lack thereof) by demanding an agreement beforehand and the issue of recognition when rights have been assigned. The former can be a real barrier to entry — but that was Dave’s point. The latter is easy to deal with, and indeed should be dealt with, by identifying individuals where that makes sense. For instance, my contributions to KPilot (since deceased) should be administered like so in the copyright header in the source files:

Copyright [year] KDE e.V. [contact email]
Author: Adriaan de Groot

The reason for still listing individual authors even after assignment is because of moral rights — pesky non-assignable, non-transferrable, non-heritable (I think) rights. Plus, it’s a means of giving recognition (if so desired) while correctly stating where the copyright (or exploitation rights) resides.

Carrying on to the end — from here until the Recommendations at the end of Michael’s piece I have trouble understanding what the problem is, unless it’s “do not assignments to untrusted parties who have an incentive to proprietize” — we find the Recommendations. Sensible recommendations, by and large. I especially appreciate the suggestion of a proxy for approving license updates — I had not seen that before. But all in all, it comes down to a very old Dilbert punchline: “try identifying the problem, then solving it.” That means considering the role you play (contributor, manager) and the style of contributions to the software and intentions for future growth.

Last night, Dutch TV carried Rip! A Remix Manifesto on the regular national channels, at ten thirty in the evening. It’s a manifesto: not necessarily all that balanced or careful, but definitely worth your time to watch. Huzzah for National Film Board of Canada.

One peculiarity of Dutch copyright law is the fact that obtaining a copy of a (copyrighted) work that is not offered in a legal fashion (i.e. the person offering the copy does not have a license to do so) does not in itself constitute infringement. In other words, you can take, but you can’t offer. Sounds a little like “do ask, but don’t tell” to me. I believe a similar situation applies in Canada. Both countries also have a “copying levy” applied to blank media.

The effect of this situation is to turn all the Dutch computer magazines (the non-technical ones anyway) into “where to get yur music n vidz” catalogues. Something that I feel does the notion of copyright a disservice. [[ I should note that it’s possible to disagree with the notion of copyright itself or the implementation thereof, but here we’re mostly weaseling to escape the fundamental restriction that it should be the author of a work who controls what may be done with it. ]]

[[ Additional warning: all links in this blog entry lead to Dutch-language pages, so be warned that they may contain Hottentottententententoonstellingen and other examples of that raspy tongue down by the sea. ]]

In the past few weeks there have been repeated kerfuffles around enforcement of copyright — in the music business, not software — but the Dutch government has now stated that it intends to make downloading illegal. Well, fortunately a little more subtle than that (although the umbrella for copyright organizations has in the past tried to paint a picture that all downloading is illegal, until the NLUUG and others called them on that). It hit one news site as free downloads should be punishable; another headline (same site) was gov’t to ban downloading. What I make of this is that “downloading” in Dutch apparently means “obtaining a copy of a work from an unlicensed source.” See the perverse effect on language?

This kind of news hits lots of channels, and you can see, for instance, on security.nl — the usual kind of discussion focused on “music biz needs a new business model” and “copyright lasts too long” and “implementation is infeasible because I’ll use encryption.”

But let’s take a closer look at the sources (maybe not the most-original source, but closer than reports in the media): a press release from the ministry of Justice. The summary of the press release reads:

Thuiskopieheffingen op informatiedragers zoals blanco cd’s en dvd’s moeten op termijn worden afgeschaft. Daarvoor in de plaats komt een regeling die het downloaden van beschermde werken uit (evident) illegale bron verbiedt. Verder wordt het toezicht op auteursrechtorganisaties sterker en zal de contractuele positie van auteurs en uitvoerende kunstenaars worden verbeterd.

[[ Loose translation in English: ]] The blank media levy (which covers home copying of music and video) on cd’s and dvd’s should be scrapped in due time. In its place, downloading of copyrighted content from (obviously) illegal sources will be prohibited. In addition, the oversight of copyright-related umbrella organizations will be strengthened and the contractual position of authors and performing artists will be improved.

I suppose I can only say I think I applaud this (the devil’s in the details, of course), as it moves to a somewhat less actuarial approach to copyright violations and tries to come up with something that works more closely along the original setup where the author had control over the protected work (within the scope of copyright law, which is the social contract governing the use of creative work, along with its explicitly allowed exceptions).

The Dutch copyright enforcers on music and video, Buma/Stemra, launched a plan last week to actually start collecting rights for proprietary content embedded in blogs and other personal websites. The version that reached the public press was that you would have to pay 130 EUR for up to six copyrighted items displayed on a .. something. That wasn’t really made clear in the press, and newspapers and then politics jumped all over it.

Now that plan has been retracted; apparently several parties in the Tweede Kamer ended up doubting the legal basis for such a licensing scheme, not to mention the social unrest caused by kids linking stuff on their social network pages (I hear Hyves is the most popular one in .nl, and its name seems to be used synonymously with “social network site” by now), and then the parents get a bill for the embedding. Well, the parents get the bill if they are still legally responsible for the child — I’m not sure what the age limits are there.

Just a list of my initial questions:

• Why is it onerous on the parents to be responsible for the behavior of their children in one aspect of the law, and not in others (e.g. vandalism)?
• If there is a legal doubt about the basis of enforcing rights on embedded content, what exactly is that based on? In what way does embedding differ from other forms of hosting? Does this not affect the legal basis of all rights enforcement on online content?
• Are these political parties up there only for their crowd-pleasing skills? (And I voted for ’em, too).

Copyright is important. It’s part of our social contract, although copyright in itself is an artificial construct of society. I won’t claim that the current crop of copyright laws is the best of all possible, but it is part of our (in the context of this blog entry, Dutch) society. And working with (and protecting) that social contract is part of everyone’s duty to society. So I’ll have a little sympathy for Buma today.

And in other news, Stichting Brein (whose amazingly annoying rightsholders information film at the beginning of every DVD I own is sufficient reason for me to rip the damn thing so I can just watch the movie and who were responsible for an amazingly misdirected bit of FUD against all forms of downloaded content a few years back — find the NLUUG and others’ response to the FUD (Dutch) as well as some useful background information on home copying (Dutch) on Arnoud Engelfriet’s blog) has gotten tied up in did-too-did-not court cases against the Pirate Bay. Brein’s mandate is protecting the rights of non-Free content. I can’t really fault them for doing that, it is something that is sometimes needed under copyright law. I can’t bring myself to have any sympathy for them, though.

[[ Thought experiment: Supposing that embedding doesn’t require normal handling of the rights on copyrighted works, how does a tracker — which doesn’t even embed, but only points to other, possibly embedded, copies — differ from the exemption now given? ]] [[ Addendum: Ars Technica has a nice overview of resistance to technology from rightsholders. ]]