[consulting] Copyright

[Luigi Bai]

On Sunday, 25 April 2010, Eric Goldhagen wrote:
> >
> >  >
> >>  The way I see it one of the most important aspects of the GPL is that
> >>  it does not care who owns the copyright, only that it is owned by
> >>  someone. Owner and non-owners are granted the same rights.
> >>
> >Hi Eric,
> >
> >Not really. In general, copyright owners are special; they can release the
> >code to anyone under any license. Which means the copyright owner could 
> >release the code to YOU under the GPL, and to someone else under another
> >license.
> 
> My statement explicitly assumes we are talking about *after* someone 
> has already licensed code under the GPL. Once code is under the GPL, 
> the copyright holder and anyone else that wants to use the code has 
> the same rights to use or modify the code.
> 

The copyright holder has all the rights possible in the work; that includes 
using and distributing it as they please to whomever they like. Recipients 
have a subset of the rights. Please see below.

> Even if the current copyright holder (of a GPL licensed codebase) 
> decides they want future versions to be relicensed under a non-free 
> license, the current code would still be covered under the GPL. See 
> the mambo/joomla split for a great example of this in real life.
> 

Because the copyright holder owns /all/ the rights in the work, even the 
current version can be distributed to other parties under different licenses. 
The point I believe you're trying to make is that there's no "clawback" 
provision - once an entity has received code under the GPL, they may use the 
work under that license irrevocably, in perpetuity. And that includes 
re-distributing it, or not, as they choose. 

The  SCO Group is (still) trying to assert that Linux includes material that 
violates their copyrights, or maybe patents, sometimes both, but neither has 
been proven in court. Even assuming, arguendo, they are right, they have also 
themselves distributed a number of Linux distributions themselves under the 
GPL. Which means they explicitly licensed at least all the code in those 
distributions to the world, in perpetuity, under the GPL. Ref: 
http://groklaw.net.

The Mambo/Joomla split teaches us that Joomla is able to continue its use, 
modification, extension, etc. of the former Mambo code, under the GPL. They 
cannot use a different license. However, Mambo is (was?) able to take that 
same pre-fork code, and any future versions of the code, and release it under 
any license it likes. This is the difference between the copyright owner, and 
a recipient of the code under GPL.

Similarly instructive would be the case of MySQL. When MySQL was a separate 
company, the /exact same code base/ was licensed to some entities under the 
GPL by broad distribution, and to others under different licenses. The two 
sets of recipients had different rights and responsibilities with respect to 
the code, and MySQL had the right to grant those different licenses. When Sun 
bought MySQL, the CEO Monty" Widenius came with the code and still had 
significant influence over its direction and distribution. When he left Sun, 
prior to Oracle's purchase of Sun, he lost that access and control; and as 
part of the EU review of the Oracle/Sun merger, he tried to argue that Oracle 
should be compelled to release MySQL under a more permissive license. Why? 
Because he wanted to continue to make money off /licensing/, not services. 
He's now in the same boat as everyone else; he can only use MySQL under the 
GPL, where Oracle now can license the code to anyone under any license. Ref: 
http://www.gnu.org/philosophy/selling-exceptions.html .

Such is the power of copyright ownership.

Drupal is a different case; it's like Linux, in that the copyright ownership 
is too distributed for any one entity to re-license it under any other 
license. That's a good thing, and a strength; it keeps a large and 
influential community participant like Acquia "honest", by compelling it to 
continue to use and distribute the code under the GPL as well.

> >However, if the code cannot be used without Drupal, the copyright owner 
can't
> >release the code to anyone else under any license but the GPL. Of course,
> >they don't have to release it to anyone at all.
> 
> Unless they have redistributed their changes, in which case they have 
> a commitment to return their code to those that maintain the codebase 
> they built on top of. Which is why my contracts specify that turning 
> over a completed project is considered distribution.
> 

Your contracts make that clear. However, work-for-hire is also a valid way to 
develop GPL code, and is not in conflict with the spirit or letter of the 
GPL. The GPL allows employees to modify GPL code, and the company owns the 
result; the company is under no obligation to distribute the changes or the 
result (the Affero GPL is different in that regard, in some cases). 

The same is true of work created by contractors under a work-for-hire 
arrangement. I admire the fact that your company, and Alex's, and others have 
made copyright ownership and the GPL part of your up-front negotiations with 
clients. The fact that you address the ownership issue in your contract is an 
explicit recognition that one thing that matters, very much, is who owns the 
code and who the copyright holder is.

For moral reasons, you may find work-for-hire distasteful, and that's your 
right - but it's just not correct to say it's incompatible with the spirit or 
letter of the GPL.

Thanks;
Luigi