;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/ica 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/ 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?
== Not Viral Good Intellectual Property Agreements==A lot of people seem to bury their head in the sand as the issue gets complicated===Examples and Guides=== *In 2010 [https://codeforamerica. For a long time (org/ Code for America] and it still continues)[https://www.openplans.org/ Open Plans] collaborated to create '''Civic Commons''', which is now all-volunteer, but the GPL was viewed as bad and labelled "viral" because if you let GPL code touch your proprietary code, youwork product remains online. The Civic Commons'll be forced to share your proprietary code2015 article [http://wiki.civiccommons. That's only half trueorg/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. Articles like *2013 [http://wwwteleogistic.techrepublic.comnet/2013/blog04/itgpl-and-free-consultant/legalsoftware-considerationslanguage-whenfor-usinggovernment-contracts/ GPL and free-software-language for government contracts] shows a clause that was used ina University setting.*[https://github.com/github/balanced-itemployee-consultingip-projects/ this oneagreement Balanced Employee IP Agreement] talk about this viral nature, but don't even touch on the other half of the story([https: what triggers the license//github.com/github/balanced-employee-ip-agreement/blob/main/Balanced_Employee_IP_Agreement. You have to "distribute" software to trigger the GPL, so if all you ever do md BEIPA]) is use the software legal agreement '''GitHub''' (plus GPL additionsnow owned by Microsoft) uses for your own internal purposesits employees.*[https://github.com/twitter/innovators-patent-agreement Innovators Patent Agreement] (IPA) from '''Twitter''', then you have all a commitment from a company to its employees that the right company will not use patents in offensive litigation without the permission of the world to use GPL software without having to publish your software 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.*[https://docs.google.com/viewer?url=https://processmechanics.com/static/2015-07/ModelCo_IP_Policy.docx Model IP Policy] [https://www.processmechanics.com/2015/07/23/a-model-ip-and-open-source-contribution-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 worldlanguage used in state contracting. Of course some people recognized that they could skirt the line by making "services" out of predominantly free software (eSource: https://www.gmass. gov/doc/statement-of-work 2018) <br />==Distribution explained== To get an online logo generator 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 uses the [[GIMPKeeps on Giving - Distribution and Copyleft in Open Source]] as a backendby ''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.) ThusEssentially, the Free Software Foundation drafted client is the foundation, and the GPLv3 as developer may be an individual or a way to define network transmission member of services tantamount to distributing the softwarea corporation. The GPLv3 license has not been as popular as the GPLv2OpenID Foundation (OIDF) develops specifications, but at least so it's there for a good example of where standards development and software developers to use when they their creations to get boxed up in the clouddevelopment meet. Ultimately, using GPL software in your (commercially available and distributed) product There is not different than using some other (proprietary) software a [http://openid.net/executed-contribution- you have agreements/ long list of contributors to have the right to do itOpenID Foundation]. GPL says you don't have that right unless you're willing The OIDF has both a formal Process to sharedevelop their specifications, as well as an IPR Policy <ref>http://openid.net/ipr/OpenID_IPR_Policy_(Final_Clean_20071221).pdf</ref>. You don't want to shareThe Policy classifies contributors as "unaffiliated" (an individual), then build it yourself. In-house counsel was often focused on this "governanceaffiliated" (anyone who work for a company), and created policies to restrict what could come in"representative" (third-bound to an organizationparty). Their contracts still had Here is the mindset that they weren't using GPL software anywhere language in their organizations, including the mundane and operations related areas section 5.1 of the business that would never cross the "distribution" thresholdIPR:<blockquote>Copyright License. Some Contributions may not be subject to copyright. To the extent, however, that a Contribution is or may be clearsubject to copyright, you can the Contributor hereby grants a perpetual, irrevocable (except in case of breach of this license), non-exclusive, royalty- free, worldwide license in such copyright to the OpenID Foundation, to other Contributors, and to 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 LOTS implementing Implementers Drafts and Final Specifications</blockquote> Section 6 of companies do -- use Drupal for an internal websitethe IPR addresses patents, or MediaWiki for with essentially a knowledgebasepromise not to assert. Here are some others to look at. *[https://www.drupal. You can even modify or extend 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 code , from soup to do things you need nuts. In it to do, he includes a discussion of Copyright License Agreements as well as Copyright Assignment Agreements. And you donThis is a good read for anyone producing open source software of course, but it't have to share your code if you don't want s also a great way for a corporate attorney toget 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
The issue we're trying Please note that while Contributor License Agreements can be a good place to focus on here see proper legal text addressing complex issues of Copyright, Patents and that nobody is addressingTrademarks, is that a they are not good practice ''operationally'majority'. See Bradley Kuhn'' of companies s perspective from 2014: [https://sfconservancy.org/blog/2014/jun/09/do-not only use free software, but frequently want to build that extra feature or just -need help deploying, integrating, upgrading and documenting it. It's -cla/ You do not need 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 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.CLA]
== Good Examples Is it Viral?==It was only after extensive research for this topic that I discovered the Civic Commons' [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]
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.
For a long time (and it still continues), the GPL was labelled "viral" (in a bad way) because if you let GPL code touch your proprietary code, you'll be forced to share your proprietary code. That's only half true. Articles like [http://www.techrepublic.com/blog/it-consultant/legal-considerations-when-using-free-software-in-it-consulting-projects/ this one] talk about this viral nature, but don't even touch on the other half of the story: what triggers the license. You have to "distribute" software to trigger the GPL, so if all you ever do is use the software (plus GPL additions) for your own internal purposes, then you have all the right in the world to use GPL software without having to publish your software to the world. Of course many people recognized that they could circumvent distribution by making "services" out of free software, for example, an online logo generator that uses the [[GIMP]] as a backend. This is sometimes called the ASP loophole. In drafting the GPLv3, there was an attempt to define network transmission of services tantamount to distributing the software. This did not ultimately make it into the GPLv3, but instead is part of the variant called the Affero GPL (or AGPL)<ref>https://www.gnu.org/licenses/why-affero-gpl.html</ref>. The AGPL license has not been as popular as the GPLv2, but at least it's there for software developers to use when they want to prevent their creations from getting boxed up in the cloud. Of greater concern to the corporation is how distribution ''can'' be triggered in some non-obvious ways - such as through merger and aquisition<ref>See Distribution explained</ref>.
== Legal explanation ==Ultimately, using GPL software in your (commercially available and distributed) product is not different than using some other (proprietary) software -- you need the right to do it. GPL says you don't have that right unless you're willing to share. You don't want to share, then build it yourself. In-house counsel was often focused exclusively on this viral aspect and the "FOSS governance" policies that grew out of it were focused on restricting what could come in-bound to an organization. Their consulting contracts with vendors still had the mindset that they weren't using GPL software anywhere in their organizations, including the mundane and operations related areas of the business that would never cross the "distribution" threshold. To be clear, you can -- and millions of companies do -- use Drupal for an internal website, or MediaWiki for a knowledgebase. You can even modify or extend that code to do things you need it to do. And you don't have to share your code if you don't want to. For most companies and most situations, the best thing they can do is to actually promote their code back "upstream" into the FOSS software project. At a minimum, they should not '''prevent''' their code from getting upstream by placing legal obstacles in the way.
[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.
== Contribution Agreements Further Resources==
* [httpshttp://www.drupallaw.orgcornell.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://licensingwww.law.cornell.edu/faq Drupalconstitution U.S. Constitution]* and [httpshttp://wikiwww.law.openstackcornell.orgedu/wikiuscode/How_To_Contribute#Contributors_License_Agreement OpenStacktext U.S. Code], etc.* Karl Fogel in his book "[http://producingosscopyfree.comorg/enresources/index.html Producing Open Source Softwarereferences Copyfree]" discusses exactly that, from soup to nuts. In it, he includes offers a discussion collection of Copyright License Agreements as well as Copyright Assignment Agreementsinteresting articles, essays etc. 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 about the perspective problems of the FOSS developerCopyright and offers an alternative copyright regime.* [https://clajolts.developersworld/index.google.com/aboutphp/google-individual?csw=1 Google Individual Contributor License Agreementjolts JOLTS]* [http(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/harmonyagreements07 they went inactive (archive mode).orgOn 2019/10/index.html Project Harmony] offers not only a 29 The International Free and Open Source Law Review relaunched as the "harmonizingJournal of Open Law, Technology & Society" view of Contributor Agreements: an international, but also the interbroadly-company contributor agreements so that employees of one organization can effectively collaborate on external FOSS projects that scoped journal about openness at Open Source Summit Europe. Previously it was the company uses.* [http://wikiwww.civiccommonsifosslr.org/Contributor_Agreements The Civic Commons Wikiifosslr International Free and Open Source Software Law Review] offers a complete run down of CLA and CAA examples
== Further Resources ==* Legal Information Institute - a project started in 1992 by the Cornell University Law School* [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.* [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, licence license implementation, licence 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*It 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://foundation.wikimedia.org/wiki/Policy:Main#Board_and_staff_members and I don't believe it is publicly available.
== Non-competes, Work for Hire, Employment 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 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 get credit for their ideas before peer-reviewed publication.
* https://faircompetitionlaw.com/2023/09/18/50-state-noncompete-chart-updated-september-18-2023/ [https://faircompetitionlaw.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. Brought 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.
== GPL and What Works ==
Software Freedom Law Center, the pro-bono law firm led by Eben Moglen, Professor of law at Columbia Law School and the world’s foremost authority on Free and Open Source Software law held its annual fall conference at Columbia Law School, New York on Oct. 28. The full-day program featured technical and legal presentations on Blockchain, FinTech, Automotive 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, ever-lasting communities. While expressing his gratitude to his colleague, friend and comrade Richard M. Stallman, 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 Extend ==
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]]
{{References}}
== Disclaimer ==<abbr title="I Am Not A LawyerNothing on the website is legal advice. If it were, it would come with an invoice.">IANAL</abbr> (That means I am not a lawyer.) 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.
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[[Category:Contracts]]
[[Category:Legal]]
[[Category:Free Software]]