[consulting] Copyright

[Luigi Bai]

On Sunday, 25 April 2010, Eric Goldhagen wrote:
> Thanks for pointing out some of the flaws in my argument, your 
> objections will inform my future debates and presentations about the 
> GPL.
> 

In so far as I'm helping refine your argument, I do it from a position of 
respect for what you and others have accomplished and are trying to 
implement.

> 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 GPL grants the /freedom/ to distribute, but it's not a /duty/. Users can 
take a GPL work and add to it, and use the combination without distributing 
the changes or the combined work: 
http://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic. 

Private modification of GPL works is explicitly allowed; that covers changes 
you make, changes your employees make, and changes made for you by 
contractors under a work-for-hire regime. No one can be compelled to release 
any changes to a GPL work (again, Affero GPL is a different analysis). 
However if the work is ever conveyed to another party, the conveyer takes on 
the responsibility of making the corresponding source code available to the 
recipient as well.

> 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.
> 

I am not a lawyer! So this is not and can't be legal advice. But this seems 
like a logical conclusion: to effect what you want, it seems to me your 
lawyer must include one of at least two things in your contract:

1. As you do now, make sure you do not assign the copyright to the client. 
Release/convey the code to the client under the GPL, with exceptions to link 
with GPL-incompatible code if that's required for it to function (for 
example, to integrate with a proprietary or non-GPL-compatible data source or 
web service).

2. If you can't accomplish #1, assign the copyright to the client as a 
work-for-hire, with an explicit grant to you under the GPL. It may be 
circumcribed to avoid release of anything confidential, proprietary, or 
trade-secret related, if necessary. You can then contractually use and 
release the code to the world; it will say "Copyright 2010 by [Client]", but 
can have your name as author.

With the caveat that you should run it by a lawyer, it appears to me that both 
options get you the right to use and release the code under the GPL and be 
identified as the author for reputation purposes.

Luigi