;Copyright :a wrong idea that really flourished.
== Copyright in FOSS Consulting ==
You know what the General Public License (GPL) is <ref>The worlds most popular software license. It was recently updated in 2007. A license utilizing the current legal framework to the advantage of the user AND author of the software. https://www.blackducksoftware.com/resources/data/top-20-open-source-licenses See http://gnu.org and http://www.gnu.org/licenses/gpl.html to learn more.</ref>, because you are a Linux hacker, web developer, or other [[Free Software consultant]] who lives and breathes free software. You consult for clients, doing DevOps using Software Engineering tools such as [[Subversion]], and [[Git]] or build automation like [[Jenkins]]. You work with database engines like [[MySQL]], [[Postgres]], and [[MongoDB]]. You do System Administration on [[RedHat]], [[Ubuntu]], and [[Debian]]. You build web services, proxies, reporting systems and more on [[Apache]] and [[Nginx]] web servers. You build extensions for [[MediaWiki]], modules for [[Drupal]], or plugins for [[WordPress]]. You do User Interface based on [[jQuery]] <ref>jQuery is licensed using the MIT license, the second most popular "Open Source" license https://www.blackducksoftware.com/resources/data/top-20-open-source-licenses</ref> and [[JavaScript]]. You extend, improve or integrate GPL software and systems, that is to say [http://directory.fsf.org/wiki/Main_Page 50,000 market leading, state of the art software products]. You '''consult''' for companies, universities, governments, other organizations large and small and they all use boilerplate contract language that is completely oblivious of the software they are using, and the work that you are doing for them in a proper legal context. To a certain degree, this is understandable - technology changes rapidly while legal systems and bureaucracies evolve slowly.
In the definition of Copyright <ref>http://www.law.cornell.edu/uscode/text/17/101</ref>, the word software never appears. The phrase 'digital transmission' is the only hint of technology that was to come in the ensuing decades. In fact, section 102 <ref>http://www.law.cornell.edu/uscode/text/17/102</ref> on the Subject matter of copyright '''expressly excludes software ''' in concept:
<blockquote>
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
== Old-School Boilerplate ==
ContractStandards.com is a pretty useful website setup by '''Lambert & Associates''' (Boston, MA and Nashua, NH) that illustrates and explains in plain language the various clauses of a contract. For example, they have a page about [http://www.contractstandards.com/contract-structure/representations-and-warranties/intellectual-property Intellectual Property (Representation)]; calling it "one of the most heavily negotiated representations". (Note: you have to click on the "Clause Elements" section heading to actually view the contents.)
Unfortunately, they offer no example that would pertain specifically to a client using GPL software, and hiring a consultant with expertise in that software. If you look at their example '''[http://www.contractstandards.com/contracts/independent-contractor-agreement Independent Contractor Agreement]''' ownership is conferred 100% to the client. As in the boilerplate example, you'll likely see language from your clients about the contractor providing a "work made for hire" under the Copyright Act <ref>http://www.law.cornell.edu/uscode/text/17/201 Any "work made for hire" confers all right to the "employer" as defined in the Act</ref> <ref>https://www.law.cornell.edu/wex/work_for_hire</ref> <ref>https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3413&context=clr Review of the statute and history and differing interpretations</ref> <ref>If you read Lee Gesmer, you'll leave out '''any mention''' of 'work for hire' in your legal agreements. It could be a huge mistake. https://www.masslawblog.com/copyright/the-work-for-hire-trap/ Mass Law Blog by Gesmer Updegrove Intellectual property and business litigation, Massachusetts and nationally</ref>. This is old-school, pre-Internet mentality and legal framework (This section of the U.S. Copyright Act was updated in 1979).
So, where can we get an idea of the language to use for a client wishing to hire a consultant who would employ GPL software and intend to publish and share that intellectual property for the benefit of the client, the contractor and the world at large?
== Good Examples and Guides Intellectual Property Agreements==
* In 2010 [https://codeforamerica.org/ Code for America] ===Examples and [https://www.openplans.org/ Open Plans] collaborated to create '''Civic Commons''', which is now all-volunteer, but the work product remains online. The Civic Commons' 2015 article [http://wiki.civiccommons.org/Legal_Issues_and_Best_Practices_Around_Procuring_or_Deploying_OSS_In_Your_Organization Best Practices Around Procuring or Deploying OSS in Your Organization] is one helpful example.* 2013 [http://teleogistic.net/2013/04/gpl-and-free-software-language-for-government-contracts/] GPL and free software language for government contracts] shows a clause that was used in a University setting.* [[Copyright/Example Contract Clauses]]Guides===
*In 2010 [https://codeforamerica.org/ Code for America] and [https://www.openplans.org/ Open Plans] collaborated to create '''Civic Commons''', which is now all-volunteer, but the work product remains online. The Civic Commons' 2015 article [http://wiki.civiccommons.org/Legal_Issues_and_Best_Practices_Around_Procuring_or_Deploying_OSS_In_Your_Organization Best Practices Around Procuring or Deploying OSS in Your Organization] is one helpful example.*2013 [http://teleogistic.net/2013/04/gpl-and-free-software-language-for-government-contracts/ GPL and free software language for government contracts] shows a clause that was used in a University setting.*[https://github.com/github/balanced-employee-ip-agreement Balanced Employee IP Agreement] ([https://github.com/github/balanced-employee-ip-agreement/blob/main/Balanced_Employee_IP_Agreement.md BEIPA]) is the legal agreement '''GitHub''' (now owned by Microsoft) uses for its employees.*[https://github.com/twitter/innovators-patent-agreement Innovators Patent Agreement] (IPA) from '''Twitter''', a commitment from a company to its employees that the company will not use patents in offensive litigation without the permission of the inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as [https://lotnet.com/ LOT] and [https://openinventionnetwork.com/ OIN], as well as contributing to open source projects. == Distribution explained ==
To get an in-depth explanation and analysis of what constitutes '''distribution''' in everyday practice, see [http://www.ifosslr.org/ifosslr/article/view/66/125 The Gift that Keeps on Giving - Distrubution and Copyleft in Open Source] by ''Heather Meeker''
== Contribution Agreements ==
Contribution agreements are one area where we can look to get an idea of standard practices among larger foundations and FOSS projects. Essentially, the client is the foundation, and the developer may be an individual or a member of a corporation. The OpenID Foundation (OIDF) develops specifications, so it's a good example of where standards development and software development meet. There is a [http://openid.net/executed-contribution-agreements/ long list of contributors to the OpenID Foundation]. The OIDF has both a formal Process to develop their specifications, as well as an IPR Policy <ref>http://openid.net/ipr/OpenID_IPR_Policy_(Final_Clean_20071221).pdf</ref>. The Policy classifies contributors as "unaffiliated" (an individual), "affiliated" (anyone who work for a company), and "representative" (third-party).
Implementers, to reproduce, prepare derivative works from, distribute, perform, and display the
Contribution and derivative works thereof solely for purposes of developing draft Specifications
and implementing Implementers Drafts and Final Specifications</blockquote>
Here are some others to look at.
* [https://www.drupal.org/licensing/faq Drupal]* [https://wiki.openstack.org/wiki/How_To_Contribute#Contributors_License_Agreement OpenStack]* Karl Fogel in his book "[http://producingoss.com/en/index.html Producing Open Source Software]" discusses exactly that, from soup to nuts. In it, he includes a discussion of Copyright License Agreements as well as Copyright Assignment Agreements. This is a good read for anyone producing open source software of course, but it's also a great way for a corporate attorney to get the perspective of the FOSS developer.* [https://cla.developers.google.com/about/google-individual?csw=1 Google Individual Contributor License Agreement]* [http://harmonyagreements.org/index.html Project Harmony] offers not only a "harmonizing" view of Contributor Agreements, but also the inter-company contributor agreements so that employees of one organization can effectively collaborate on external FOSS projects that the company uses.* [http://wiki.civiccommons.org/Contributor_Agreements The Civic Commons Wiki] offers a complete run down of CLA and CAA examples
== Is it Viral? ==
Why do contracts seem so hostile toward Free Software? Basically, contracts were written to defend against the risks that GPL '''could''' introduce to a companies core products. But this is only one aspect of the complete landscape. A separate aspect is how companies '''rely''' on GPL software.
== Further Resources ==
* [http://www.law.cornell.edu/ Legal Information Institute] - a project started in 1992 by the Cornell University Law School that publishes the law online, for free. See the [http://www.law.cornell.edu/constitution U.S. Constitution] and [http://www.law.cornell.edu/uscode/text U.S. Code], etc.* [http://copyfree.org/resources/references Copyfree], offers a collection of interesting articles, essays etc. about the problems of Copyright and offers an alternative copyright regime.* [https://jolts.world/index.php/jolts JOLTS] (Journal of Open Law, Technology & Society): an international, broadly-scoped journal about openness still has an archive of their work online <ref>On 2022/09/07 they went inactive (archive mode). On 2019/10/29 The International Free and Open Source Law Review relaunched as the "Journal of Open Law, Technology & Society": an international, broadly-scoped journal about openness at Open Source Summit Europe. Previously it was the [http://www.ifosslr.org/ifosslr International Free and Open Source Software Law Review]
JOLTS is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, license implementation, license interpretation, software patents, open standards, case law and statutory changes.</ref>
* Traditional treatment of the subject comes from the perspective of protecting against risks that the software is perceived to create. The Association of Corporate Counsel has this primer http://www.acc.com/legalresources/quickcounsel/quickcounsel_open_source_software.cfm While it does discuss many of the valid concerns that you would have as a corporation, it does nothing to address the proactive and beneficial things you can and should do to address the needs and benefits created by the collaboration economy.*Cornell University Law School https://www.law.cornell.edu/wex/collective_work
{{References}}
== Disclaimer ==
"Nothing on the website is legal advice. If it were, it would come with an invoice." I'm just a free software expert.
This information is here to educate, inform, and hopefully spread best practice information to consultants, their clients, employees and employers alike who wish to operate in the real world that is completely full of interconnected "Intellectual Property". It is not legal advice. It should not be construed as legal advice. It does not create an attorney-client relationship. If you're an attorney reading this, I'd love to get your feedback and I hope that this information is useful to the representation you provide to your clients.
== Colophon ==
As part of our Free Culture efforts, the copyright for this wiki was updated to use the Creative Commons Attribution-ShareAlike 4.0 International License.
