[consulting] Copyright

[Eric Goldhagen]

At 1:01 PM -0500 4/25/10, Luigi Bai wrote:
>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.

This is a very good point, but one that would only apply in 
situations that I do not work under.

Technically you are correct. The copyright owner does indeed have a 
right that others do not -- the right to sell exceptions or dual 
license the code.

This is no way changes my statement. Whether my client or I own the 
copyright, in terms of my rights to re-use, distribute and modify 
code licensed under the GPL, there is no difference. This is what is 
important to me -- being able to reuse and distribute code I write. 
In that context I don't care if my client wants to own copyright or 
not, my rights are protected either way.

This is my point: because code work I do is released under the GPL, 
if my client wants to own the copyright I have no reason to deny them 
or argue about it because the GPL protects the rights that are 
important to me. I'll be more clear in explaining this in the future 
to not ignore the issue that you are bringing up. This is especially 
true because all my work involves building on top of existing GPL 
codebases and not creating software tools from scratch. If I was 
building new tools from scratch, I would be much more concerned about 
being the copyright holder.




>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).

In my opinion, as stated earlier, I do not agree that work for hire 
is a valid option for Free Software development because it denies 
rights to the author of the code.

Because work for hire assigns the creation of code to the client, not 
the coder, this means that the code can be kept private (it does not 
fall into the category of having been distributed). This therefor 
keeps code from those that the GPL aims to ensure access to. As such, 
in my opinion, work for hire agreements violate at least the spirit 
of the GPL.

>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.

You might want to call my objections based in a moral reasoning, but 
that does not alter my opinion that due to moral and ethical reasons 
work for hire violates the spirit of the GPL. An agreement that 
denies someone the right to claim their role in writing code, that 
potentially denies someone the right to within the bounds of the GPL 
reuse code that they themselves wrote seems to me to clearly violate 
at least the spirit of the GPL.

Three times in the past 10 years or so, I've debated this with the 
legal department of potential clients. All three times the lawyers 
have, after researching the issue, decided that either I was correct 
or that this is enough of a grey area that they have agreed with me 
and removed work-for-hire language from contracts.

You might be right on the "letter of the law" part of things. I'll 
leave that for the lawyers and others more educated in the law than I 
am to debate.

Thanks for pointing out some of the flaws in my argument, your 
objections will inform my future debates and presentations about the 
GPL.

--Eric
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