Licensing Model: Joint Copyright Assignments

[Lawrence E. Rosen]

> > Eben (and maybe even other attorneys) might be on tap for 
> any valuable 
> > open source component.  It is never too late to assign the 
> copyright 
> > if necessary to protect it.
> 
> Assuming the original author is still available, that is.  
> You are seeing it from the author's standpoint, not the 
> organization's.

Perhaps I am.  Why is that bad?  For generations, organizations have
taken copyrights from weaker artists and musicians because the perceived
value of a work when it is first written is often far less than it might
be in later years.  Why should we continue that practice in the world of
software?

An organization that receives contributions and creates an open source
collective work has an interest in having unfettered freedom (e.g., a
license) to use, copy, modify and distribute the component software.
Please explain why, in the typical case, it has any interest in
enforcing the copyright on those components.  

I have no problem with copyright assignments when they are entirely
voluntary.  A contributor who wants simply to contribute and then forget
about his rights should feel free to assign his copyright if he wants
to.  As I said before, the Sun assignment is as good as any for that
purpose.  What I question is a *policy* of an open source project that
requires assignment of the copyright when the assignee can't enunciate
any current purpose for such an assignment.

Furthermore, some of those who seek copyright assignment incorrectly
assume that enforcement of a software license depends on copyright law.
That isn't necessary for a contract.  Any licensor (under a contract,
not the GPL!) has the right to enforce his license even if he doesn't
own the copyright to the work.  So if the only place where an open
source program is used is in a collective work, OpenOffice (for
example), and that program was copied into a proprietary program against
the terms of the license, it will be simple to prove that the breach --
the unlicensed copying, modification, or distribution -- must have
occurred against the OpenOffice license.  The copyright owner needn't
participate in such a straightforward breach of contract case.  No
copyright assignment is necessary.

I'm dealing with a similar assignment issue right now for a client.
He's got a patent that he co-invented with another person.  The law
requires that, in order to pursue a patent infringement claim (which has
recently become necessary), he must have the cooperation of his
co-inventor.  In this situation it is appropriate for my client to
obtain a patent assignment so that he can have exclusive control of
litigation and licensing activities.  We're doing that now, when there's
a current need.  We would never have expected the co-inventor to have
assigned his rights way back when, before anyone understood the possible
importance of the patent.  The negotiated value of the patent assignment
is based on the current state of affairs.  The analogy with open source
software licensing isn't precise because in this matter I'm dealing with
patents rather than copyrights.  But the lesson is the same.  Don't give
away something prematurely that the recipient doesn't need and that you
might later want.  Assign away your rights only when it is appropriate
to do so.

/Larry Rosen

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