Copyright

Fri Oct 25 23:48:03 UTC 2002

Some thoughts on onwership relationships and remedies from OZ -

This relationship of ownership could be one that arises in equity as well as
copyright - the "custodians" (or at least the project coordinator)  have a
fiduciary obligation to others in the group  - upon breach of the GPL where
a person makes a derivative work and benefits form it commercially without
returning the source code to the community one could argue that equity
arises because breach of the contract has resulted in little economic loss -
specific performance would be a better solution where the breaching entity
is forced to reveal source code and return it to the community.  Equity
developed specific performance as "a remedy to compel the execution in
specie of a contract which requires some definite thing to be done before
the transaction is complete and the parties' rights are settled and defined
in the manner intended." (J C Williamson Ltd v Lukey and Mulholland (1931)
45 CLR 282 at 297).

A further remedy could then be to enforce an account for profits by the
breaching party under copyright law. (Copyright Act Cth 1968 S115 (2)
Subject to this Act, the relief that a court may grant in an action for an
infringement of copyright includes an injunction (subject to such terms, if
any, as the court thinks fit) and either damages or an account of profits.)
It is not difficult to imagine a scenario arising where a commercial
developer may be tempted to incorporate large sections of open source free
code into their code and sell the resultant product while not releasing the
modified code to the copyleft community, contrary to GPL.   In such a
scenario an account for profits is the best remedy for a group with limited
resources - the plaintiff is not required to have suffered a loss and, if
successful, can reap large rewards from an action against a defendant with
deep pockets. (Peter Hastie, "Restitution and Remedy in Intellectual
Property Law," (1996) 14 Aust Bar Review No 1)   But this statutory remedy
misses the whole point of the fee software movement.  It is not motivated by
money but by innovation and consequent access to the source code.  In the
free community, 'consideration' is the effort and time put into development
of the program and any egoboo that results from its acceptance in the
community.  A breach is not an act that causes detriment 'in personam' - the
commercial developer has acted against the values of a community.

There is authority to show that, at least by analogy, equity could allow
such specific performance.  Multiple developers could be joined in an action
or the open community or communities who have overseen the development could
effectively represent the interests of such distributed developers.
Critically, the organiser of such a community may be seen to have a
fiduciary duty to their members as Bulun Bulun was seen to have to his tribe
when he coded the dreams of the Ganalbingu people in an artistic fashion.
(John Bulun Bulun v R & T Textiles Pty Ltd  [1998] 1082 FCA per Doussa J
[www.austlii.edu.au] 23/08/01):

"The conclusion that in all the circumstances Bulun Bulun owes fiduciary
obligations to the Ganalbingu people does not treat the law and custom of
the Ganalbingu people as part of the Australian legal system. Rather, it
treats the law and custom of the Ganalbingu people as part of the factual
matrix which characterises the relationship as one of mutual trust and
confidence. It is that relationship which the Australian legal system
recognises as giving rise to the fiduciary relationship, and to the
obligations which arise out of it."

Aren't code writers the interpreters of our dreams in the digital world?
The leader of the community could be the equitable owner of the copyright
in the code made by the collective.  The organiser's fiduciary role would
then be to seek specific performance of any breach for, and on behalf of,
the community who have given him or her their trust and confidence as part
of the factual matrix in the development of the code.

Graham Bassett

__________________________________________________________________________

Converging law, information technology and education to foster an autonomous
cyberspace
__________________________________________________________________________

Graham Bassett BA, DipEd, MInfoTech, LLB (Hons)
PO Box 1565
Byron Bay NSW 2481
Australia
Tel. 0414986158
bassett at ozemail.com.au
http://members.ozemail.com.au/~bassett/

----- Original Message -----
From: "Richard Stallman" <rms at gnu.org>
To: <jcowan at reutershealth.com>
Cc: <kenbrown at erols.com>; <jcowan at reutershealth.com>; <sujita at mimos.my>;
<license-discuss at opensource.org>
Sent: Friday, October 25, 2002 8:02 PM
Subject: Re: Copyright

>     It's called the GPL because it assigns certain rights to everyone, not
because
>     it makes everyone (or some abstract entity called "the general
public")
>     the owner.
>
> Legally, a GPL-covered work is copyrighted and has certain copyright
> holders.  For certain purposes, it makes a difference who they are.
> For instance, they alone have legal standing to enforce the GPL (in US
> law, at least).  Since copyright holders are also called "owers",
> these persons are legally the owners of the work.
>
> However, in the GNU Project we see ourselves ethically not as owners
> of something we can use at our pleasure, but as custodians of the work
> on behalf of the public.  In spirit, the public should be the owner,
> but since copyright law doesn't work that way, the public is not
> legally the owner.
>
> Credit is a different matter--we're all in favor of giving credit
> to people who advance knowledge.
>
>
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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