12 ms·

Contributor Agreements Considered Harmful

71 points by ronjouch 7y ago

barkingcat 7y ago
This seems like making a mountain out of a molehill. To get an ICLA all legit while you are employed, run it by the legal department of the company you are employed by, and they can give you an idea if any changes to the agreement is needed (and of course, if you are allowed to spend company or private time on the project), and get it signed legally and on file for all parties involved. Done. Many of the issues outlined here can be resolved by properly communicating all the concerns before signing a legal document (which is recommended practice). It seems like ESR is treating these contributor agreements as static one-way agreements rather than things that can be changed as needed.
- crdoconnor 7y ago
  >To get an ICLA all legit while you are employed, run it by the legal department of the company you are employed by, and they can give you an idea if any changes to the agreement is needed (and of course, if you are allowed to spend company or private time on the project), and get it signed legally and on file for all parties involved. Done. IME company legal departments are unlikely to indulge this kind of thing unless they owe you a favor. Where they do, their blanket response is usually "no, now go away". Ideally any solution to this problem should take account of corporate legal departments' aversion to extra work and risk.
- Spooky23 7y ago
  Of course it is, it's Eric Raymond. End of the day, if you assert the ability to do something, and that assertion is fraudulent, you, the committer, are fucked.
jasonvorhe 7y ago
It's so sad this guy is still getting airtime and attention.
- cheez 7y ago
  Why?
  - DonHopkins 7y ago
    Here is but one facet of many that explain why. If this isn't enough, I can quote some of his many racist tweets and blog postings for you, but they will turn your stomach. http://www.linux-magazine.com/Online/Blogs/Off-the-Beat-Bruce-Byfield-s-Blog/The-Decline-and-Fall-of-Eric-S.-Raymond http://www.linux-magazine.com/Online/Blogs/Off-the-Beat-Bruc... >The Decline and Fall of Eric S. Raymond >Around the start of the millennium, Eric S. Raymond was one of the philosophical leaders of open source. His essay and book, The Cathedral and the Bazaar was obligatory reading for executives trying to understand open source. Now, after lying low for over a decade, Raymond is getting attention again, this time for two blog entries in which he rants about how so-called Social Justice Warriors (SJWs) threaten open source. >[...] Raymond's call to defend open source from SJWs is as deceptive as anything he attributes to his enemies. Free and open source software is too widespread to need defending, and his attempt to create an issue does not map well on to actual events. For those who remember his earlier contributions to open source, his recent comments make for a disappointing epilogue.
    - cheez 7y ago
      I don't see how any of what you've quoted would turn my stomach. He is entitled to his beliefs, is he not? Edit: Nevermind, I see your other posts. No need to respond here thanks.
      - DonHopkins 7y ago
        Congratulations on your iron gutted tolerance of intolerance. https://en.wikipedia.org/wiki/Paradox_of_tolerance https://en.wikipedia.org/wiki/Paradox_of_tolerance As I said, he had a lot of sycophants and supporters who his thinly veiled and blatant racism resonates with, instead of disgusts. They hang out on his blog, and sometimes come out of the woodwork to drop his name, carry his water, and justify his racism, whenever they notice discussions like this. Namedropping "ESR" http://esr.ibiblio.org/?p=5266 http://esr.ibiblio.org/?p=5266 (read in a smarmy voice) "2. Do drop my name if by doing so you can achieve some mission objective of which I would approve. Examples that have come up: encouraging people to design in accordance with the Unix philosophy, or settling a dispute about hacker slang, or explaining why it's important for everyone's freedom for the hacker community to hang together and not get bogged down in internal doctrinal disputes." -Eric S Raymond What makes you believe I don't think he's entitled to his beliefs? Or is that just a straw man? He's entitled to believe anything he likes, just not entitled to be tolerated for his intolerance. But if you want to do that yourself, go knock yourself out. He's also entitled to have other people openly discuss and criticize his beliefs, and drop his name after quoting his own words.
marcoperaza 7y ago
Beware this analysis. Intent can matter in copyright law in many important ways, even if not on the core question of whether there was infringement.[1] And the fact that a bad actor with a big legal budget can still make hell does not make something worthless. By that standard, all contracts are worthless. It’s also worth remembering that not everyone is a bad actor. You can help secure good will and trust by making sure that the other guy has a full understanding and proper notice of your arrangement. I don’t know much about CLAs and I’m no expert in copyright law, but I’m just saying that this piece doesn’t pass the smell test. It might still be the case that CLAs aren’t worth your trouble—I really don’t know—but I’d want better reasons that the ones in this piece. [1] https://www.trademarkandcopyrightlawblog.com/2013/12/innocent-infringement-intent-and-copyright-law/ https://www.trademarkandcopyrightlawblog.com/2013/12/innocen...
hacknat 7y ago
Yeah, these got popular with GitHub on bigger projects. It’s like lawyers for these organizations aren’t sufficiently well versed enough in the laws around open source to realize they’re already protected, so they apply contracts law, which is what they learned in law school. What’s kind of ironic is that I wonder if these are even valid contracts. Contracts are required to have 5 characteristics: an offer, acceptance, consideration, competency, and legal intent. Open source agreements that require disclosing source code changes may lack the ability to give consideration as you are, in a sense, required to contribute changes back. Consideration means you get something in return for signing a contract. The thing you get for signing ULAs and the like are the ability to use a product. What are you getting in return for signing these agreements? The ability to contribute? Already that seems like a pretty weak consideration, but when you add in that you are required by some licenses to disclose changes and I think these contracts are completely void of any legal basis.
jordigh 7y ago
I don't know about CLAs, but the way the FSF asks for copyright assignment isn't as careless as Eric makes it out to be. The FSF does require a statement from your employer that you're able to do the copyright assignment. I know of at least one prof whose university wouldn't grant that assignment and therefore the copyright couldn't be transferred. There was no "legal voodoo"; everyone was aware of what needed to happen and understood that it couldn't because the university didn't want it to. Whether the FSF getting copyright assignments is helpful or not, I'm not sure, but it seems that it is: Hellwig's Linux GPL enforcement case against VMWare has so far hinged on him being able to ascertain copyright over the bits of code that VMWare allegedly violated, and last I heard, the court threw out his claims because they decided that git blame logs are not enough proof of his copyright ownership. If all of the Linux devs could collectively enforce copyright over their code as a single legal entity with single ownership, this particular obstacle wouldn't be there. Edit: Just checked. Hellwig decided to no longer appeal. A second court decided to also not hear the case, on "purely procedural grounds", which I think again is about the question of copyright ownership: https://sfconservancy.org/news/2019/apr/02/vmware-no-appeal/ https://sfconservancy.org/news/2019/apr/02/vmware-no-appeal/ On the other hand, it's good that VMWare has decided to become GPL-compliant anyway. So, yeah, I think the FSF has a good reason to have copyright assignments, to avoid this particular obstacle.
deleted 7y ago
[deleted]
mattl 7y ago
> Eric S. Raymond is a wandering anthropologist and trouble-making philosopher. He's been known to write a few lines of code too. Actually, if the tag "ESR" means nothing to you, what are you doing reading this magazine? Seems unnecessary and gatekeepery.
- tsm 7y ago
  When I was getting into Linux as a teenager in 2008 esr came up a lot, but apart from writing The Cathedral and the Bazaar and a few shorter essays and contributing to relatively-minor opens source projects…what has he actually done? Especially recently? He frequently feels like someone who's famous because he's famous. I'm not trying to slander the guy; he's definitely contributed more code and ideas to the open source community than I have. I just don't consider him to be anywhere near the same level of hacker as Linus or rms.
  - h2odragon 7y ago
    I'd say I'm a fan and I'd agree he's not a hacker in Linus or rms class. His utility is explaining hackers, their actions , and the reasons for those actions to non hackers in a way that everybody doesn't disagree with too badly. I couldn't articulate why I wanted to release software under an Open license to my boss, but ESR's writing helped them understand as far as they were able.
    - DonHopkins 7y ago
      He certainly believes he's the most famous programmer in the world. At least Terry Davis could write code. https://geekz.co.uk/lovesraymond/archive/show-them-the-code https://geekz.co.uk/lovesraymond/archive/show-them-the-code https://geekz.co.uk/lovesraymond/archive/moral-compassed https://geekz.co.uk/lovesraymond/archive/moral-compassed https://news.ycombinator.com/item?id=13147038 https://news.ycombinator.com/item?id=13147038 tptacek on Dec 10, 2016 [-] I think we're all pretty sure ESR is not in fact a god, and that nothing could have occurred with ESR or his magic flute to have demonstrated to him that he was. Rather, the story is more broadly illustrative of a pretty extreme narcissism and --- challenging --- variant of self-awareness. For a more down to earth example, consider how many of us would non-ironically write the following passage: I’m wondering about this because my wife Cathy asked me a simple question last night, and I realized I didn’t have an answer to it. “Are you” she asked “the most famous programmer in the world?” This was a question which I had, believe it or not, never thought about before. But it’s a reasonable one to ask, given recent evidence – notably, the unexpected success of my Patreon page. This is relevant because Patreon is mainly an arts-funding site – it’s clearly not designed for or by techies. It goes on in this vein. Here, by the way, is a link to his Patreon page: [link redacted] Apparently we value "the code that makes our digital world work" a bit less than we value the person who fries our french fries at McDonalds. If that sounds mean, well, it is, but it was also Eric Raymond who put forward the idea that his Patreon page may indicate that he's among the most famous programmers in the world. For a nerdier take on ESR's merits, hunt down Terry Lambert's take on fetchmail. (You should know who Terry Lambert is, if you don't already). [link provided to "A tangential diatribe on the unsuitability of fetchmail"] https://markmail.org/thread/pmoqk6tuybncu2is https://markmail.org/thread/pmoqk6tuybncu2is armitron on Dec 10, 2016 [-] Not to mention that ESR was, at some point, a multi-millionaire. Pretty sure he still is, in which case that Patreon page of his would be nothing but a con.
dctoedt 7y ago
FTA: "If it ever comes to a court case, one of the first things [sic] the judge is going to look at is community expectations and practice around our licenses. A jurist is supposed [sic] to do this in contract and license cases; there's some famous case law about the interpretation of handshake contracts among Hasidic Jewish diamond merchants in New York City that makes this very clear and explicit. Where there is doubt about interpretation and no overriding problem of of equity, the norms of the community within which the license/contract was arrived at should govern." [Emphasis added.] The first two sentences of this quote are flat-out wrong and give false hope about the supposed willingness of (U.S.) courts to rescue people from "unfair" contracts. Only in the italicized part of the final sentence does ESR get it right, and even then only partly so. 1. In American law's protocol ("subroutine") for interpreting contract language, a judge will never get as far as looking at industry standards unless the judge first determines that the language is ambiguous, that is, capable of two or more plausible interpretations, and that evidence of industry standards can be helpful in resolving the ambiguity. 2. "Equity" generally doesn't enter into contract interpretation or enforcement, at least in U.S. law. The normal governing principle here is "freedom of contract" — as in, you're free to make a really dumb deal, and (with rare exceptions such as "unconscionability") the court won't rewrite the contract for you just because you come to regret having entered into it. 3. If the judge does get as far as taking industry standards into account, then: (A) Evidence of just what those standards are will need to be presented; (B) the finder of fact — possibly the jury — might have to weigh the evidence and "decide" what those industry standards are, for purposes of deciding the case; and (C) the industry standards won't necessarily be controlling in any case. Source: I teach business-contract drafting as a part-time law professor; my relevant course materials, with links to additional reading, are at https://toedtclassnotes.site44.com/#AmbigTop https://toedtclassnotes.site44.com/#AmbigTop
- Bartweiss 7y ago
  Thank you for this. The claim that community expectations are relevant in the face of a clearly-written contract sounded bizarre to me, but it's nice to have some actually informed confirmation. As an aside, do you know what case law he's talking about with the diamond merchants? Not only can I not find any such "famous case law" with a quick search, I'm instead finding articles like this which specifically claim those handshake contracts aren't enforceable, and analyze how they function in the absence of legal protection: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1719&context=faculty_scholarship https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...
rlpb 7y ago
The author seems to base his argument on: 1) assuming the reasons a project owner might want to mandate an agreement; and then 2) demonstrating why those assumed reasons are not fulfilled by an agreement. However there exist other good reasons a project may want to mandate a contributor agreement or assignment. If I can demonstrate just one, then his entire claim is moot. Here is one reason. A project owner may want to relicense the project in the future. This would require them to either contact every copyright holder (some of whom may be unreachable in the future), or to require a copyright assignment for all contributions, or to require an agreement permitting such relicensing in the future. I'm sure some contributors explicitly do not want such relicensing to be possible in the future. That's fine - but the author has not argued that this makes such agreements or assignments a bad thing. Here's a legitimate example: what if your project is licensed under the GPL but later you want to add SSL functionality by linking with OpenSSL? You'll need an "OpenSSL linking exception" from all copyright holders which can be extremely difficult to obtain. If you had a contributor agreement or assignment in place, then you wouldn't. What about other things like this that would generally be accepted by the community in the future, but you haven't thought of today? A copyright assignment or suitable contributor agreement derisks you from these. On his "work for hire" point, the same argument applies to any contribution whatsoever, since if the contributor doesn't have permission to assign copyright, that contributor may also not have the permission to license their work. I'm not trying to argue for or against these agreements here; I'm just saying that it seems like the author's arguments are moot because of the very narrow scope of the assumptions that he's made.

71 points by ronjouch 7y ago

This seems like making a mountain out of a molehill. To get an ICLA all legit while you are employed, run it by the legal department of the company you are employed by, and they can give you an idea if any changes to the agreement is needed (and of course, if you are allowed to spend company or private time on the project), and get it signed legally and on file for all parties involved. Done. Many of the issues outlined here can be resolved by properly communicating all the concerns before signing a legal document (which is recommended practice). It seems like ESR is treating these contributor agreements as static one-way agreements rather than things that can be changed as needed.

crdoconnor 7y ago
>To get an ICLA all legit while you are employed, run it by the legal department of the company you are employed by, and they can give you an idea if any changes to the agreement is needed (and of course, if you are allowed to spend company or private time on the project), and get it signed legally and on file for all parties involved. Done. IME company legal departments are unlikely to indulge this kind of thing unless they owe you a favor. Where they do, their blanket response is usually "no, now go away". Ideally any solution to this problem should take account of corporate legal departments' aversion to extra work and risk.
Spooky23 7y ago
Of course it is, it's Eric Raymond. End of the day, if you assert the ability to do something, and that assertion is fraudulent, you, the committer, are fucked.

jasonvorhe 7y ago

It's so sad this guy is still getting airtime and attention.

cheez 7y ago
Why?
- DonHopkins 7y ago
  Here is but one facet of many that explain why. If this isn't enough, I can quote some of his many racist tweets and blog postings for you, but they will turn your stomach. http://www.linux-magazine.com/Online/Blogs/Off-the-Beat-Bruce-Byfield-s-Blog/The-Decline-and-Fall-of-Eric-S.-Raymond http://www.linux-magazine.com/Online/Blogs/Off-the-Beat-Bruc... >The Decline and Fall of Eric S. Raymond >Around the start of the millennium, Eric S. Raymond was one of the philosophical leaders of open source. His essay and book, The Cathedral and the Bazaar was obligatory reading for executives trying to understand open source. Now, after lying low for over a decade, Raymond is getting attention again, this time for two blog entries in which he rants about how so-called Social Justice Warriors (SJWs) threaten open source. >[...] Raymond's call to defend open source from SJWs is as deceptive as anything he attributes to his enemies. Free and open source software is too widespread to need defending, and his attempt to create an issue does not map well on to actual events. For those who remember his earlier contributions to open source, his recent comments make for a disappointing epilogue.
  - cheez 7y ago
    I don't see how any of what you've quoted would turn my stomach. He is entitled to his beliefs, is he not? Edit: Nevermind, I see your other posts. No need to respond here thanks.
    - DonHopkins 7y ago
      Congratulations on your iron gutted tolerance of intolerance. https://en.wikipedia.org/wiki/Paradox_of_tolerance https://en.wikipedia.org/wiki/Paradox_of_tolerance As I said, he had a lot of sycophants and supporters who his thinly veiled and blatant racism resonates with, instead of disgusts. They hang out on his blog, and sometimes come out of the woodwork to drop his name, carry his water, and justify his racism, whenever they notice discussions like this. Namedropping "ESR" http://esr.ibiblio.org/?p=5266 http://esr.ibiblio.org/?p=5266 (read in a smarmy voice) "2. Do drop my name if by doing so you can achieve some mission objective of which I would approve. Examples that have come up: encouraging people to design in accordance with the Unix philosophy, or settling a dispute about hacker slang, or explaining why it's important for everyone's freedom for the hacker community to hang together and not get bogged down in internal doctrinal disputes." -Eric S Raymond What makes you believe I don't think he's entitled to his beliefs? Or is that just a straw man? He's entitled to believe anything he likes, just not entitled to be tolerated for his intolerance. But if you want to do that yourself, go knock yourself out. He's also entitled to have other people openly discuss and criticize his beliefs, and drop his name after quoting his own words.

marcoperaza 7y ago

Beware this analysis. Intent can matter in copyright law in many important ways, even if not on the core question of whether there was infringement.[1] And the fact that a bad actor with a big legal budget can still make hell does not make something worthless. By that standard, all contracts are worthless. It’s also worth remembering that not everyone is a bad actor. You can help secure good will and trust by making sure that the other guy has a full understanding and proper notice of your arrangement. I don’t know much about CLAs and I’m no expert in copyright law, but I’m just saying that this piece doesn’t pass the smell test. It might still be the case that CLAs aren’t worth your trouble—I really don’t know—but I’d want better reasons that the ones in this piece. [1] https://www.trademarkandcopyrightlawblog.com/2013/12/innocent-infringement-intent-and-copyright-law/ https://www.trademarkandcopyrightlawblog.com/2013/12/innocen...

hacknat 7y ago

Yeah, these got popular with GitHub on bigger projects. It’s like lawyers for these organizations aren’t sufficiently well versed enough in the laws around open source to realize they’re already protected, so they apply contracts law, which is what they learned in law school. What’s kind of ironic is that I wonder if these are even valid contracts. Contracts are required to have 5 characteristics: an offer, acceptance, consideration, competency, and legal intent. Open source agreements that require disclosing source code changes may lack the ability to give consideration as you are, in a sense, required to contribute changes back. Consideration means you get something in return for signing a contract. The thing you get for signing ULAs and the like are the ability to use a product. What are you getting in return for signing these agreements? The ability to contribute? Already that seems like a pretty weak consideration, but when you add in that you are required by some licenses to disclose changes and I think these contracts are completely void of any legal basis.

jordigh 7y ago

I don't know about CLAs, but the way the FSF asks for copyright assignment isn't as careless as Eric makes it out to be. The FSF does require a statement from your employer that you're able to do the copyright assignment. I know of at least one prof whose university wouldn't grant that assignment and therefore the copyright couldn't be transferred. There was no "legal voodoo"; everyone was aware of what needed to happen and understood that it couldn't because the university didn't want it to. Whether the FSF getting copyright assignments is helpful or not, I'm not sure, but it seems that it is: Hellwig's Linux GPL enforcement case against VMWare has so far hinged on him being able to ascertain copyright over the bits of code that VMWare allegedly violated, and last I heard, the court threw out his claims because they decided that git blame logs are not enough proof of his copyright ownership. If all of the Linux devs could collectively enforce copyright over their code as a single legal entity with single ownership, this particular obstacle wouldn't be there. Edit: Just checked. Hellwig decided to no longer appeal. A second court decided to also not hear the case, on "purely procedural grounds", which I think again is about the question of copyright ownership: https://sfconservancy.org/news/2019/apr/02/vmware-no-appeal/ https://sfconservancy.org/news/2019/apr/02/vmware-no-appeal/ On the other hand, it's good that VMWare has decided to become GPL-compliant anyway. So, yeah, I think the FSF has a good reason to have copyright assignments, to avoid this particular obstacle.

deleted 7y ago

[deleted]

mattl 7y ago

> Eric S. Raymond is a wandering anthropologist and trouble-making philosopher. He's been known to write a few lines of code too. Actually, if the tag "ESR" means nothing to you, what are you doing reading this magazine? Seems unnecessary and gatekeepery.

tsm 7y ago
When I was getting into Linux as a teenager in 2008 esr came up a lot, but apart from writing The Cathedral and the Bazaar and a few shorter essays and contributing to relatively-minor opens source projects…what has he actually done? Especially recently? He frequently feels like someone who's famous because he's famous. I'm not trying to slander the guy; he's definitely contributed more code and ideas to the open source community than I have. I just don't consider him to be anywhere near the same level of hacker as Linus or rms.
- h2odragon 7y ago
  I'd say I'm a fan and I'd agree he's not a hacker in Linus or rms class. His utility is explaining hackers, their actions , and the reasons for those actions to non hackers in a way that everybody doesn't disagree with too badly. I couldn't articulate why I wanted to release software under an Open license to my boss, but ESR's writing helped them understand as far as they were able.
  - DonHopkins 7y ago
    He certainly believes he's the most famous programmer in the world. At least Terry Davis could write code. https://geekz.co.uk/lovesraymond/archive/show-them-the-code https://geekz.co.uk/lovesraymond/archive/show-them-the-code https://geekz.co.uk/lovesraymond/archive/moral-compassed https://geekz.co.uk/lovesraymond/archive/moral-compassed https://news.ycombinator.com/item?id=13147038 https://news.ycombinator.com/item?id=13147038 tptacek on Dec 10, 2016 [-] I think we're all pretty sure ESR is not in fact a god, and that nothing could have occurred with ESR or his magic flute to have demonstrated to him that he was. Rather, the story is more broadly illustrative of a pretty extreme narcissism and --- challenging --- variant of self-awareness. For a more down to earth example, consider how many of us would non-ironically write the following passage: I’m wondering about this because my wife Cathy asked me a simple question last night, and I realized I didn’t have an answer to it. “Are you” she asked “the most famous programmer in the world?” This was a question which I had, believe it or not, never thought about before. But it’s a reasonable one to ask, given recent evidence – notably, the unexpected success of my Patreon page. This is relevant because Patreon is mainly an arts-funding site – it’s clearly not designed for or by techies. It goes on in this vein. Here, by the way, is a link to his Patreon page: [link redacted] Apparently we value "the code that makes our digital world work" a bit less than we value the person who fries our french fries at McDonalds. If that sounds mean, well, it is, but it was also Eric Raymond who put forward the idea that his Patreon page may indicate that he's among the most famous programmers in the world. For a nerdier take on ESR's merits, hunt down Terry Lambert's take on fetchmail. (You should know who Terry Lambert is, if you don't already). [link provided to "A tangential diatribe on the unsuitability of fetchmail"] https://markmail.org/thread/pmoqk6tuybncu2is https://markmail.org/thread/pmoqk6tuybncu2is armitron on Dec 10, 2016 [-] Not to mention that ESR was, at some point, a multi-millionaire. Pretty sure he still is, in which case that Patreon page of his would be nothing but a con.

dctoedt 7y ago

FTA: "If it ever comes to a court case, one of the first things [sic] the judge is going to look at is community expectations and practice around our licenses. A jurist is supposed [sic] to do this in contract and license cases; there's some famous case law about the interpretation of handshake contracts among Hasidic Jewish diamond merchants in New York City that makes this very clear and explicit. Where there is doubt about interpretation and no overriding problem of of equity, the norms of the community within which the license/contract was arrived at should govern." [Emphasis added.] The first two sentences of this quote are flat-out wrong and give false hope about the supposed willingness of (U.S.) courts to rescue people from "unfair" contracts. Only in the italicized part of the final sentence does ESR get it right, and even then only partly so. 1. In American law's protocol ("subroutine") for interpreting contract language, a judge will never get as far as looking at industry standards unless the judge first determines that the language is ambiguous, that is, capable of two or more plausible interpretations, and that evidence of industry standards can be helpful in resolving the ambiguity. 2. "Equity" generally doesn't enter into contract interpretation or enforcement, at least in U.S. law. The normal governing principle here is "freedom of contract" — as in, you're free to make a really dumb deal, and (with rare exceptions such as "unconscionability") the court won't rewrite the contract for you just because you come to regret having entered into it. 3. If the judge does get as far as taking industry standards into account, then: (A) Evidence of just what those standards are will need to be presented; (B) the finder of fact — possibly the jury — might have to weigh the evidence and "decide" what those industry standards are, for purposes of deciding the case; and (C) the industry standards won't necessarily be controlling in any case. Source: I teach business-contract drafting as a part-time law professor; my relevant course materials, with links to additional reading, are at https://toedtclassnotes.site44.com/#AmbigTop https://toedtclassnotes.site44.com/#AmbigTop

Bartweiss 7y ago
Thank you for this. The claim that community expectations are relevant in the face of a clearly-written contract sounded bizarre to me, but it's nice to have some actually informed confirmation. As an aside, do you know what case law he's talking about with the diamond merchants? Not only can I not find any such "famous case law" with a quick search, I'm instead finding articles like this which specifically claim those handshake contracts aren't enforceable, and analyze how they function in the absence of legal protection: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1719&context=faculty_scholarship https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...

rlpb 7y ago

The author seems to base his argument on: 1) assuming the reasons a project owner might want to mandate an agreement; and then 2) demonstrating why those assumed reasons are not fulfilled by an agreement. However there exist other good reasons a project may want to mandate a contributor agreement or assignment. If I can demonstrate just one, then his entire claim is moot. Here is one reason. A project owner may want to relicense the project in the future. This would require them to either contact every copyright holder (some of whom may be unreachable in the future), or to require a copyright assignment for all contributions, or to require an agreement permitting such relicensing in the future. I'm sure some contributors explicitly do not want such relicensing to be possible in the future. That's fine - but the author has not argued that this makes such agreements or assignments a bad thing. Here's a legitimate example: what if your project is licensed under the GPL but later you want to add SSL functionality by linking with OpenSSL? You'll need an "OpenSSL linking exception" from all copyright holders which can be extremely difficult to obtain. If you had a contributor agreement or assignment in place, then you wouldn't. What about other things like this that would generally be accepted by the community in the future, but you haven't thought of today? A copyright assignment or suitable contributor agreement derisks you from these. On his "work for hire" point, the same argument applies to any contribution whatsoever, since if the contributor doesn't have permission to assign copyright, that contributor may also not have the permission to license their work. I'm not trying to argue for or against these agreements here; I'm just saying that it seems like the author's arguments are moot because of the very narrow scope of the assumptions that he's made.