Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2009/04/08/neary-copyright-assignment.html

Dave Neary found me during
breakfast at the Linux Collaboration Summit this morning and mentioned
that he was being flamed for a blog post he made,
Copyright
assignment and other barriers to entry. Or, as some might title it
in a Computer Science academic tradition: Copyright Assignment
Considered Harmful. I took a look at Dave’s post, and I
definitely think it’s worth reading and considering, regardless of
whether you agree with it or flame it. For my part, I think I agree
with most of his points.

One of the distinctions that Dave is making that some might miss is the
difference between non-profit, community-controlled copyright assignment
assignees and for-profit copyright assignees. He
quotes
Luis Villa to make the point that companies, ultimately, aren’t the
best destinations as a final home of FLOSS copyrights. If copyright
assignment is looked only through the lens of a for-profit corporate
entity — with only the duty to its shareholders to determine its
future — then indeed it’s a dangerous situation for many of the
reasons that Dave raises.

I believe strongly that assigning copyright to a for-profit corporate
entity is usually problematic. As Dave points out, corporations aren’t
really community members proper of a Free Software community; rather,
their employees typically are. I have always felt that either
copyrights should be assigned to a transparently-run non-profit
501(c)(3) entity, or they should be held by individual contributors.
Indeed, the Samba project even has a
policy
to accept absolutely no corporate copyrights in their codebase, and
I would love to see more projects adopt that policy.

I trust 501(c)(3) non-profits more than for-profits not only because
I’ve spent most of my career in the former, and have enjoyed that time
more than my time at the latter. I trust non-profits more because their
charters and founding documents require a duty to a public-benefiting
mission and to a community. They are failing to act properly under
their charters if they put the needs of a for-profit entity ahead of the
needs of the community and the public. This is exactly the correct
alignment of incentives for a consolidation of FLOSS copyrights.

Some projects don’t like centralized copyright for various reasons.
While I do prefer it myself, I can understand this desire among
individuals to each keep their stake of control in the project. Thus, I
don’t object to projects that want each individual contributor to have
their own copyright. In this situation, the incentives are still
properly aligned, because individuals who helped make the project happen
have the legal control. While these individuals have
no required commitment to the public good like a non-profit,
they are members of a community and are much more
likely to put the community needs above the profit motive that controls
all for-profit entities.

When Dave says copyright assignment might be harmful, he seems to talk
primarily about for-profit corporate assignment. I agree with him on
that point. however, when he mentions that it’s unnecessary, I don’t
completely agree, but he raises well the points that I would raise as to
why it’s important.

However, in the middle of Dave’s post is the bigger concern that
deserves special mention. The important task is keeping a clear record
of the copyright provenance about where the work came from, and who
might have a copyright claim. Copyright assignment is a short-hand way
to do this in an organized and clear fashion. It’s a simple solution
with some overhead, and sometimes projects over the years have been
annoyed with (and even ridiculed) that overhead. However, the more
complex solutions have overhead, too. If you don’t do assignment, you
must keep careful track of every contributor, what their employer
agreements say, and whether they have the right to submit patches under
their own copyrights to the project. Some projects do this better than
others.

Regardless, all of this is hard work. For years, I’ve seen it as a
personal task of mine to help develop systems and recommendations that
help make either process (assignment or good copyright record-keeping)
less burdensome. I haven’t worked on this task as much as I should
have, but I have not forgotten that it needs attention. I envision
integrated hooks and systems with revision control systems that help
with this. I think we eventually need something that makes it trivial
for hackers to implement and easy to maintain. I understand that the
last thing any Free Software hacker wants to do is sit and contemplate
the legal implications of contributions they’ve received. As such, all
of us who follow this issue hope to make it easier for projects to do
the work. In the meantime, I think discussion about this is good, and
I’m thankful for Dave to raising the issue again.