4 ms·

I'm not disagreeing with the FSF's approach. But the fact that the FSF hasn't in fact litigated isn't by itself a reason that preserving the clear ability to l

by nullc 5y ago

I'm not disagreeing with the FSF's approach. But the fact that the FSF hasn't in fact litigated isn't by itself a reason that preserving the clear ability to litigate isn't useful. We don't know how many cases an infringer was made more likely to come into compliance by the fact that work had clear ownership, particularly because the FSF has avoided litigation when they had other avenues open.

bluGill 5y ago
The FSF only needs some of the code to litigate though. It is better own everything, but that only is a factor after the case is done, if the FSF owns 20% of the code, then they get 20% of the total possible value of the infringement. (likely after lawyer fees, and class-action can apply) It is easier if they own all the code, but it isn't required.
- wahern 5y ago
  > It is easier if they own all the code, but it isn't required. It's not that simple. For joint works any single author can grant rights to the entire work. Do you know what the caselaw is regarding joint works as applied to typical FOSS projects? I don't. But I suspect it's less than crystal clear (see, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999185 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999185) and therefore creates significant risk when attempting enforcement. Litigation is costly, and a wrinkle like this could potentially be exploited by an infringer to drag out an enforcement case for many years.
  - lmm 5y ago
    > For joint works any single author can grant rights to the entire work. That doesn't sound right - why would anyone ever contribute to a joint work if the other author can sell it to a publisher on their own? Wouldn't they then just take all the royalties and leave you with nothing?
    - wahern 5y ago
      1) A joint author can individually only grant non-exclusive a license. See https://copyright.universityofcalifornia.edu/ownership/joint-works.html https://copyright.universityofcalifornia.edu/ownership/joint... Traditionally, publishers usually require exclusive licensing. 2) A joint author still must share profits. See previous link and also https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2340&context=mlr https://repository.law.umich.edu/cgi/viewcontent.cgi?article... (But can a joint author claim waste--loss of commercial profit--if another licenses as FOSS?) 3) Joint authors in the business of commercializing their works (as opposed to accidental joint authors) would usually have a contract between themselves controlling licensing. 4) If it doesn't sound right, that's exactly my point. Copyright law is more complex than discussed on internet forums. Just because something doesn't make sense to a non-practitioner doesn't mean it's completely senseless to a practitioner. Corporate lawyers are often much more risk averse than law professors counseling FOSS advocacy organizations. But as mentioned by the previous SSRN paper I linked[1], joint authorship is typically considered to be detrimental and even fatal to the objectives of many FOSS licenses, which usually assume a model of distinct, serial contributions creating derivative (not joint) works. [1] Chestek, Pamela S, A Theory of Joint Authorship for Free and Open Source Software Projects (July 2, 2017). Available at SSRN: https://ssrn.com/abstract=2999185 https://ssrn.com/abstract=2999185 or http://dx.doi.org/10.2139/ssrn.2999185 http://dx.doi.org/10.2139/ssrn.2999185
      - lmm 5y ago
        Hmm, fair enough, I'm more used to England and Wales. Sounds like US copyright law is pretty crazy.
        wahern 5y ago
        The UK also has joint authorship. The test is slightly different, though I'm not sure how much of a difference it would make in the context of FOSS. See Elena Cooper, Joint Authorship in Comparative Perspective: Levy v. Rutley and Divergence Between the UK and USA, http://eprints.gla.ac.uk/100708/7/100708.pdf http://eprints.gla.ac.uk/100708/7/100708.pdf To be clear, I'm not trying to say that all or even any FOSS works are or should be considered joint works. Just that the possibility could be a concern for lawyers contemplating enforcement. Certainly in other areas where you often see informal cooperation in the creation of collaborative works, such as in music, the issue absolutely does come back to bite people.
- ajross 5y ago
  What about arguments like "the code the FSF owns isn't what I infringed?", or "the FSF doesn't own the code because this other developer wrote this bit and isn't a party to the suit; let me call them as a witness"? I mean, it's true that you could still win a case having to win those arguments, but it's harder. Defense in depth isn't just a computer security technique. Any lawyer will tell you that the easiest argument to win is one that can't be brought in the first place.

by nullc 5y ago

bluGill 5y ago

The FSF only needs some of the code to litigate though. It is better own everything, but that only is a factor after the case is done, if the FSF owns 20% of the code, then they get 20% of the total possible value of the infringement. (likely after lawyer fees, and class-action can apply) It is easier if they own all the code, but it isn't required.

wahern 5y ago
> It is easier if they own all the code, but it isn't required. It's not that simple. For joint works any single author can grant rights to the entire work. Do you know what the caselaw is regarding joint works as applied to typical FOSS projects? I don't. But I suspect it's less than crystal clear (see, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999185 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999185) and therefore creates significant risk when attempting enforcement. Litigation is costly, and a wrinkle like this could potentially be exploited by an infringer to drag out an enforcement case for many years.
- lmm 5y ago
  > For joint works any single author can grant rights to the entire work. That doesn't sound right - why would anyone ever contribute to a joint work if the other author can sell it to a publisher on their own? Wouldn't they then just take all the royalties and leave you with nothing?
  - wahern 5y ago
    1) A joint author can individually only grant non-exclusive a license. See https://copyright.universityofcalifornia.edu/ownership/joint-works.html https://copyright.universityofcalifornia.edu/ownership/joint... Traditionally, publishers usually require exclusive licensing. 2) A joint author still must share profits. See previous link and also https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2340&context=mlr https://repository.law.umich.edu/cgi/viewcontent.cgi?article... (But can a joint author claim waste--loss of commercial profit--if another licenses as FOSS?) 3) Joint authors in the business of commercializing their works (as opposed to accidental joint authors) would usually have a contract between themselves controlling licensing. 4) If it doesn't sound right, that's exactly my point. Copyright law is more complex than discussed on internet forums. Just because something doesn't make sense to a non-practitioner doesn't mean it's completely senseless to a practitioner. Corporate lawyers are often much more risk averse than law professors counseling FOSS advocacy organizations. But as mentioned by the previous SSRN paper I linked[1], joint authorship is typically considered to be detrimental and even fatal to the objectives of many FOSS licenses, which usually assume a model of distinct, serial contributions creating derivative (not joint) works. [1] Chestek, Pamela S, A Theory of Joint Authorship for Free and Open Source Software Projects (July 2, 2017). Available at SSRN: https://ssrn.com/abstract=2999185 https://ssrn.com/abstract=2999185 or http://dx.doi.org/10.2139/ssrn.2999185 http://dx.doi.org/10.2139/ssrn.2999185
    - lmm 5y ago
      Hmm, fair enough, I'm more used to England and Wales. Sounds like US copyright law is pretty crazy.
      - wahern 5y ago
        The UK also has joint authorship. The test is slightly different, though I'm not sure how much of a difference it would make in the context of FOSS. See Elena Cooper, Joint Authorship in Comparative Perspective: Levy v. Rutley and Divergence Between the UK and USA, http://eprints.gla.ac.uk/100708/7/100708.pdf http://eprints.gla.ac.uk/100708/7/100708.pdf To be clear, I'm not trying to say that all or even any FOSS works are or should be considered joint works. Just that the possibility could be a concern for lawyers contemplating enforcement. Certainly in other areas where you often see informal cooperation in the creation of collaborative works, such as in music, the issue absolutely does come back to bite people.
ajross 5y ago
What about arguments like "the code the FSF owns isn't what I infringed?", or "the FSF doesn't own the code because this other developer wrote this bit and isn't a party to the suit; let me call them as a witness"? I mean, it's true that you could still win a case having to win those arguments, but it's harder. Defense in depth isn't just a computer security technique. Any lawyer will tell you that the easiest argument to win is one that can't be brought in the first place.