[OPEN-ILS-DEV] Copyright issues

[Scott McKellar]

No code here -- this post is about legal issues.

I'm wondering if, in the haste to get a working system out the door,
the Evergreen team has neglected certain legal niceties concerning
copyright.

Obligatory disclaimer: I am not a lawyer, and the following should
not be construed as legal advice.  If you need legal advice, you 
should obtain it from a lawyer licensed within your jurisdiction.

Additional disclaimer: what little law I know about is U.S. law.
Copyright laws vary in other countries such as Canada.

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According to the home page at http://open-ils.org/, Evergreen is
licensed under the GPL.  Which GPL?  The home page doesn't say, and
it isn't easy to find out.  This information should be easier to
find.

In the source code, where the licensing is mentioned, it refers to
GPL version 2 or later, at the user's option.  I've only looked at
the C code.  I don't know if the non-C code is licensed the same
way.

However most source files contain no mention of licensing, nor even
a copyright notice.  When there is a copyright notice, it is often
out of date.  For example it may say "Copyright 2006", presumably
reflecting the date of the original version.  If the file was updated
in 2007, the copyright notice should say "Copyright 2006, 2007".

(I am as guilty as anyone in this regard.  I have never thought to
update any copyright notices in my patches.)

Bill Erickson's name and email address usually (always?) appear
directly beneath the copyright notice.  It's not clear to me whether
Bill is thereby asserting a copyright interest in the code.  I would
expect that as far as Bill is concerned the code is a work-for-hire,
and Bill is not a copyright holder, but of course Bill's employment
contract may stipulate otherwise.  I suggest that the comments be
revised to clarify whether Bill is a copyright holder or just an
author.

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Whenever I have seen a copyright notice in the code, it identifies
GPLS as the copyright holder.  Is that really still true, now that
Equinox has split off as an independent entity?  Do the legal
arrangements between GPLS and Equinox stipulate that GPLS retains 
copyright in the code developed before the spinoff?  What about code 
developed after the spinoff?

These are rhetorical questions, and I don't really need the answers.
The point is that Equinox and GPLS need to be very explicit with each
other about copyright ownership.  I wouldn't want to see them descend
into the kind of copyright dispute that we have seen between SCO and
Novell, for example.

Even if relations between Equinox and GPLS remain forever amicable.
copyright ownership needs to be very clear if anyone is to enforce
the copyrights.  Suppose some evil corporation rips off Evergreen
software and sells it under a proprietary license.  Who will have
standing to file suit over copyright infringement?  Whoever sues
must have clear title to the copyrights.

---------

Whoever owns them should register them with the U.S. Copyright
Office.  Registration is not necessary to establish a copyright --
the copyright exists at the moment the work is put into a tangible
form -- but you have to register the copyright before you can file
suit for copyright infringement.

Registering a copyright is neither difficult nor expensive.  I 
believe there is something like a $30 filing fee.

Timeliness is important.  I'm hazy on the details, but they go
something like this.  If you register the copyrights within five
years after creating the work, in any subsequent litigation the
copyright will bear a rebuttable presumption of validity.  If you
wait more than five years to register, you don't get the presumption
of validity, and you will be in a weaker position to press a claim
of infringement.

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The last issue is the copyright interests of outside contributors.
I will use myself as an example.

Most of my patches are probably too fragmentary to qualify for
copyright protection.  But consider jsonScrubNumber(), a function
I contributed for making numeric strings compliant with JSON rules.
It's not War and Peace, but it's original, non-trivial, not dictated
by merely functional considerations (there are multiple ways to do
the same thing), and sufficiently substantial to merit copyright 
protection.

Who owns the copyright to jsonScrubNumber()?  I do.

When I submitted this function as part of a patch, I included the
standard Developer's Certificate of Origin.  However that Certificate
is only a license.  It grants permission to publish and relicense.
It manifestly is NOT a conveyance of copyright, nor does it purport
to be.

A copyright can be conveyed only by an explicit writing.  I don't
know if the writing has to be on paper, or if a posting on a mailing
list can qualify.

Strictly speaking, any file containing the source code for
jsonScrubNumber() should include a copyright notice with my name on
it, and the year 2007.  If you want to license it under the BSD or
MIT license, you need to get permission from me first, or from my
heirs if I'm dead.  If you want to sue somebody for using it without
permission, then I (or my heirs) need to be a party to the suit.

I don't intend to become nasty and pound my fist on the table about
my precious copyrights.  I'm just using myself as an example in order
to make a point.

If it hasn't already done so, Evergreen needs to decide on a policy 
about the copyright interests of its contributors.  Different 
projects have different policies.  The GNU folks insist that
contributors assign copyrights explicitly, on paper, so that the GNU 
project can enforce the copyrights or change the licensing at will.
At the other extreme, contributors to the Linux kernel retain their
own copyrights.  As a result, Linus couldn't change the licensing
to GPL 3 even if he wanted too.

Evergreen's policy appears to be similar to that of the Linux kernel.
However it's hard to find a clear statement to that effect on the
website.

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As long as the Evergreen project consisted of a few geeks toiling in
a Georgia basement, probably no one cared about the copyrights.  But
Evergreen is growing up.  If it is as successful as we all hope, the
copyrights will become a substantial asset, meritting legal
protection with all due attention -- however tedious -- to the
details.

Scott McKellar
http://home.swbell.net/mck9/ct/