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==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:

== 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 "Work for Hire Definition in the Copyright Act of1976: Conflict Over Specially Ordered or Commissioned Works" - a review of the statute and history and differing interpretations of what the act means.</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/

Unfortunately, they offer no example that would pertain specifically to a client using GPL softwareMass Law Blog by Gesmer Updegrove Intellectual property and business litigation, Massachusetts and hiring a consultant with expertise in that software. If you look at their example '''[http://www.contractstandards.com/contracts/ica 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 Actnationally</ref>. This is old-school, pre-Internet mentality and legal framework (This section of the U.S. Copyright Act was updated in 1979).

== Not Viral Good Intellectual Property Agreements==A lot of people seem ===Examples and Guides=== *In 2010 [https://codeforamerica.org/ Code for America] and [https://www.openplans.org/ Open Plans] collaborated to bury their head 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 sand as the issue gets complicatedlegal agreement '''GitHub''' (now owned by Microsoft) uses for its employees.*[https://github. For a long time com/twitter/innovators-patent-agreement Innovators Patent Agreement] (and it still continuesIPA)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 GPL was viewed inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as bad [https://lotnet.com/ LOT] and labelled "viral" because if you let GPL code touch your proprietary code[https://openinventionnetwork.com/ OIN], you'll be forced as well as contributing to share your proprietary codeopen source projects.*[https://docs.google. That's only half truecom/viewer?url=https://processmechanics.com/static/2015-07/ModelCo_IP_Policy. Articles like docx Model IP Policy] [httphttps://www.techrepublicprocessmechanics.com/blog2015/07/it-consultant23/legala-considerationsmodel-whenip-usingand-freeopen-source-softwarecontribution-policy/ created at Rackspace].* [https://docs.google.com/document/d/1Z8LTNwD9yKU_4mCN8UOhsvK05Nuk9ZAiRN6lJjZdQbw/edit Massachusetts.gov Statement of Work] boilerplate agreement which gives an example of the language used instate contracting. (Source: https://www.mass.gov/doc/statement-itof-consultingwork 2018) <br />==Distribution explained== To get an in-projectsdepth explanation and analysis of what constitutes '''distribution''' in everyday practice, see [http://www.ifosslr.org/ifosslr/article/view/66/ this 125 The Gift that Keeps on Giving - Distribution and Copyleft in Open Source] by ''Heather Meeker'' ==Contribution Agreements== Contribution agreements are one] talk about this viral naturearea 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, but donso it't even touch on the other half s a good example of the storywhere standards development and software development meet. There is a [http: what triggers //openid.net/executed-contribution-agreements/ long list of contributors to the licenseOpenID Foundation]. You have 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 "distributeunaffiliated" (an individual), "affiliated" (anyone who work for a company), and "representative" software (third-party).  Here is the language in section 5.1 of the IPR:<blockquote>Copyright License. Some Contributions may not be subject to trigger copyright. To the GPLextent, however, so if all you ever do that a Contribution is use or may be subject to copyright, the software Contributor hereby grants a perpetual, irrevocable (plus GPL additionsexcept in case of breach of this license) for your own internal purposes, then you have all the right non-exclusive, royalty-free, worldwide license in such copyright to the world OpenID Foundation, to use GPL software without having other Contributors, and to publish your software 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> Section 6 of the worldIPR addresses patents, with essentially a promise not to assert. Of course  Here are some people recognized that they could skirt the line by making "services" out of predominantly free software (eothers to look at. *[https://www.gdrupal. an online logo generator that uses the org/licensing/faq Drupal]*[https://wiki.openstack.org/wiki/How_To_Contribute#Contributors_License_Agreement OpenStack]*Karl Fogel in his book "[GIMPhttp://producingoss.com/en/index.html Producing Open Source Software]] as a backend" discusses exactly that, from soup to nuts.) ThusIn it, the Free Software Foundation drafted the GPLv3 as he includes a way to define network transmission discussion of services tantamount to distributing the softwareCopyright License Agreements as well as Copyright Assignment Agreements. The GPLv3 license has not been as popular as the GPLv2This is a good read for anyone producing open source software of course, but at least it's there also a great way for software developers to use when they their creations a corporate attorney to get boxed up in the cloudperspective of the FOSS developer. Ultimately, using GPL software in your (commercially available and distributed) product is not different than using some other (proprietary) software -- you have to have the right to do it*[https://cla. GPL says you don't have that right unless you're willing to sharedevelopers. You don't want to share, then build it yourselfgoogle. Incom/about/google-house counsel was often focused on this individual?csw=1 Google Individual Contributor License Agreement]*[http://harmonyagreements.org/index.html Project Harmony] offers not only a "governanceharmonizing" and created policies to restrict what could come inview of Contributor Agreements, but also the inter-bound to an company contributor agreements so that employees of one organization. Their contracts still had the mindset can effectively collaborate on external FOSS projects that they weren't using GPL software anywhere in their organizations, including the mundane company uses.*[http://wiki.civiccommons.org/Contributor_Agreements The Civic Commons Wiki] offers a complete run down of CLA and operations related areas of the business CAA examples Please note that would never cross the "distribution" threshold. To while Contributor License Agreements can be cleara good place to see proper legal text addressing complex issues of Copyright, you can -- Patents and LOTS of companies Trademarks, they are not good practice ''operationally''. See Bradley Kuhn's perspective from 2014: [https://sfconservancy.org/blog/2014/jun/09/do -not-need- use Drupal for an internal website, or MediaWiki for a knowledgebase. cla/ You can even modify or extend that code to do things you not need it to do. And you don't have to share your code if you don't want to. a CLA]

The issue we're trying to focus on here and that nobody is addressing, is that a '''majority''' of companies not only use free software, but frequently want to build that extra feature or just need help deploying, integrating, upgrading and documenting ==Is it. It's not a core product. It's just some internal thing to get work done. Take for example a simple PHP application used for keeping track of Time Off, using a MySQL database backend. Should a company "own" the intellectual property associated with upgrading MySQLViral? It may actually be counter to the law. An author only has rights to the specific pieces of expression that they've contributed to a collaborative work so they can't claim ownership over the whole thing.==

== Good Examples ==http://teleogistic.net/2013/04/gpl-and-free-software-language-for-government-Why do contracts seem so hostile toward Free Software? Basically, contracts/ shows a clause were written to defend against the risks that was used in GPL '''could''' introduce to a University settingcompanies core products. But this is only one aspect of the complete landscape. A separate aspect is how companies '''rely''' on GPL software.

[http://wwwThe issue we're trying to focus on here and that very few address, is that a '''majority''' of companies not only use free software, but need commercial support for that software.ifosslr.org/ifosslr/article/view/66/125 The Gift They frequently want to build that Keeps on Giving - Distrubution extra feature or just need help deploying, integrating, upgrading and Copyleft in Open Source] by documenting it. It's not a core product. It'Heather Meekers just some internal thing to get work done. Take for example a simple PHP application used for keeping track of Time Off, using a MySQL database backend. Should a company "own" the intellectual property associated with upgrading MySQL? It may actually be counter to the law. An author only has rights to the specific pieces of expression that they've contributed to a collaborative work so they can't claim ownership over the whole thing.

== Resources ==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>* Legal Information Institute - 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 project started in 1992 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 Schoolhttps://www.law.cornell.edu/wex/collective_work* [httpIt would be great if the Wikimedia Foundation published their Employee IPR Policy, as a reference model, but there is no mention of it at https://copyfreefoundation.wikimedia.org/resourceswiki/references Copyfree]Policy:Main#Board_and_staff_members and I don't believe it is publicly available. == Non-competes, offers a collection of interesting articlesWork for Hire, essays etcEmployment Agreements ==* [https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2517604 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property] - a paper about the problems expansion of Copyright into "thoughts" by non-compete agreements etc. in industry. Published by '''SSRN - Elsevier''' (Social Science Research Network) which is an open-access preprint community providing services to academic schools & government institutions. Scholars can post their early research, collaborate on theories and discoveries, and offers an alternative copyright regimeget credit for their ideas before peer-reviewed publication.* https://faircompetitionlaw.com/2023/09/18/50-state-noncompete-chart-updated-september-18-2023/ [httphttps://wwwfaircompetitionlaw.com/wp-content/uploads/2023/09/Noncompetes-50-State-Noncompete-Survey-Chart-20230918.pdf the chart in PDF] - a survey of non-competes across all 50 US states.ifosslrBrought to you by Beck Reed Riden - a law firm in Boston which doesn't want employees to have the freedoms of mobility that California provides.org/ifosslr International Free  == GPL and Open Source What Works ==Software Freedom Law Center, the pro-bono law firm led by Eben Moglen, Professor of law at Columbia Law Review] is a collaborative legal publication aiming to increase knowledge School and understanding among lawyers about the world’s foremost authority on Free and Open Source Software issueslaw held its annual fall conference at Columbia Law School, New York on Oct. 28. Topics covered include copyrightThe full-day program featured technical and legal presentations on Blockchain, licence implementationFinTech, licence interpretationAutomotive FOSS and GPL Compliance by industry and community stalwarts. The program culminated in remarks by Moglen that highlighted the roles of engagement and education in building effective, software patentsever-lasting communities. While expressing his gratitude to his colleague, open standardsfriend and comrade Richard M. Stallman, case law Moglen emphasized the positive message relayed by Greg Kroah-Hartman and Theodore Ts’o –earlier in the day– for creating win-win solutions and spreading users’ freedom. [https://www.linux.com/news/eben-moglen-gpl-compliance-and-building-communities-what-works/ Here is a video and the transcript of his remarks] (2016). == Embrace and statutory changesExtend ==Since most contributions to the Linux kernel project these days (2021) are [https://lwn.net/Articles/860989/ by paid staffers of the biggest tech companies], there is an overwhelming undercurrent of non-enforcement of the GPL in business. And who would do it anyway? There is no government or trade organization that will do GPL enforcement. == MediaWiki and Wikipedia ==* [[mw:Copyright]]* [[wp:Copyright]]