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Balancing Third Party "Ownership" Against The GPL?
hooptie asks: "For the past three years, I've been employed by a contract agency to develop medical outcomes measurement software for a military medical center. Since neither of my immediate corporate nor military superiors really understand the GPL, they've all agreed to license the software under it; and from day-one, everything developed has been released under the GPL, with my name as the holder of the copyright. Now, this 'home grown' system is actually being looked at by the MEDCOM commanders to be deployed Army wide; and, there are some people in the chain of command, under the auspices that the Department of Defense owns the software and that THEY didn't agree to the licensing, don't want to adhere to it because they want to incorporate it's functionality into a closed, propietary system that they've been developing. If I've followed the appropriate steps for applying the GPL to the software, do I have any recourse if they try to close the source? Is this situation parallel to the ASPL or am I missing something?"
Why don't you ask the FSF since they wrote the license, about advice? WHy ask /. where the answer might or might not mean anything, and the value of the answer is questionable at best.
Je ne parle pas francais.
Seems like a simple case to me:
Since you did it during your employers time, do you have anything in writing, or in your contract that copyright is to fall to you? (so that you can legally place it under the GPL?), or other documentation that proves that somebody with signing authority agreed to put it under the GPL?
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As a last resort and compromise, you could offer to write out a separate commercial license to allow inclusion in the proprietary library, still saving the code for usage under GPL.
If you own the copyright, you can release it under as many licenses as you want. However, if you have used source from other people, you probably want to make sure that either they agree to release copyright claim, or agree to the relicensing.
1. Although you are named the copyright holder, you developed it while working for your employer, so they have ultimate rights to it.
2. The GPL doesn't prevent the copyright holder from changing the license on later versions of the software, only against anyone else taking the source and releasing it under anything besides the GPL. Therefore, as long as they don't try to put the cat back in the bag and "un-GPL" all the old versions (how they would, I don't know), all the versions from now on could be released under any license they feel like.
This will get interesting, if those superiors were actually entitled to give away those rights.
Then it's leaving or fighting the GPL. Cool.
The important issue here is the terms of the contract. Unless it was explicitly stated in the terms of that contract that the code will remain open, (which, I assure you, it doesn't) then the DoD can do whatever they wish.
It doesn't matter what kind of liscense the code has already been released under. It really doesn't matter what you want. The DoD owns the code, because they paid you to develop it. If they want to incorporate it into a closed system, then they have the power to do so. If you raise a ruckus and attempt to stand in the way of that, you'll find yourself replaced, quickly.
J.J.
If you have a contract with the contract agency, or they have one with the military, chances are that there are terms in those contracts regarding intellectual property and work-for-hire that supercede your desire to license the code you worked on under the GPL.
You may not have any say in distribution of the code.
-a.e.mossberg
Mandatory Disclaimer: I am not a lawyer, nor do I pretend to be one--anything I tell you should not be construed as advice but the ramblings of a mad man.
Full GPL License There are a few ways that GPL'ed code can remain open but the greater project can be closed... think about DLL's or helper executables to handle the work that is required here. Helper executables would slow down the processing a bit, but linked DLL's should still work. IF it was "mandatory" to fix this "mistake" it might be plausible to place the GPLed code in a linked DLL and use that to work in the "gpl'ed" code... with the greater Executable being closed source.
Of course there is the option to redo all the work, but I doubt that this is even possible... but if the higher ups do not think a staticly linked DLL containing the open source code is possible (EG they dont want the open source for even that code any longer) -- well... redo all the work, or send a coded message involving the acronym "RTFGPL" (Read the 'friggin' GPL) to your higher ups.
I've done several web sites for government agencys - all pretty much scripted, and the code that i use (95% of which is literally mine) is all GPL. (I'd place a link to it here if it were ready to go public).
Anyway - there was a little hesitation from them with the license, but once i explained the difference between a copyright on the 'content', vs a copyright on 'the code that speaks the content', they warmed up to it.
This argument probably wont solve your problem, but it will perhaps help.
-voudras
If you really own the copyright, then all base belong to you.
The question is do you have anything that states who the owner of the code you wrote is? The real owner will depend greatly on your terms of employment. In most cases it will be your employer, BUT if you have a document saying otherwise, well...
If it was released under GPL with the permission of the owner, then that which was released will remain released, the copyright owner has no obligation to release future versions under any given license unless they have made a contractual obligation otherwise.
MOVE 'ZIG'.
Since owners of GPL'd sofware can release the same software under multiple licenses (as did Larry Wall with Perl), ask to keep ownership, but re-license it to the DoD under a BSD'ish license (or whatever else they want).
That way, it stays GPL for everyone else, but they get to incorporate it into their propietory program and everyone's happy.
Jordan Bettis
``Wherever you go, there's another stupid sigfile quote.''If the DOD wants to keep the source closed, the can still comply with the GPL. All they have to do is make the source available to the people who use the system, namely other Military people. That may be enough to make them happy.
Of course I doubt you'd be happy as the whole point of leting the code out under the GPL was to help more than just the Military right?
BTW I think you may have just shot yourself in the foot by
A) not getting things in writing
B) admiting in public that they did not understand the GPL. If they did not understand it, it makes it hard to say they argreeded. (IANAL)
-Peace
Dave
Free as in "the Truth shall set you..."
As mentioned, your employer has authority over what is done with their intellectual property - which includes anything you come up with while on company time
If you've released this software - sent it out, published it, whatever, then you could be held liable for "damages" incurred by you releasing company IP.
The best thing you could do for yourself at this point is say "ok" and "release" the software under a new license. You ARE allowed to do this, as being the so-called copyright holder.
Let me say this one more time: You do not own the copyright on the source, your employer does.
If you want to hold the copyright on some software, write it on your own time.
---
Desperation is a stinky cologne
First, I have to say that it seems rather unethical to have done this. Your employer didn't understand the GPL but you snuck it by anyway? Explaining it would have been the right thing to do, rather than giving free software a bad rap by having them discover the terms after the fact. If you were employed by them, you may even have had a legal obligation to make a good-faith effort before taking the code for yourself.
/.
I also question if you legally own it. They paid for your emplyment, and I'd be really surprised if they let you hold the copyright. But if you do, there's no issue. Take your code and do what you want with it, but be prepared to go to court and be blacklisted from future employment with them.
Finally, nothing prevents the true copyright holder (whoever that is) from releasing the code under another license. Nothing says you can't can't push GPL licensed code out the public door, while also putting the code into a closed system. Of course, you can't take other's GPL'd code (including their additions to your code) and put it in the closed system.
Get a lawyer if you're really serious about this. You're not going to sort this out on
DISCLAIMER: I'm more familiar with Canadian copyright law, but I have a feeling this generalization applies there too.
It all depends on who actually owns the copyright. If you are the owner of the copyright, then you're free to release it under the GPL and any other licenses you want. To satisfy the client, you could GPL it and license it to them under a separate license that lets them do whatever they want. If they own the copyright (i.e., if it's considered a "work for hire"), then it's up to them how they want to license it. Check your contract for terms and conditions, and talk to a real lawyer.
A bit of GPL trivia: (IANRMS) I believe the GPL allows you to incorporate GPLed code into your closed-source project, provided you do not sell or distribute that project. If it's just for in-house use, I think you're in the clear.
If your companies contract specified that your company would retain ownership of the code, then you can release it under any license you like, as long as you let them use it.
If the contract says the military owns exclusive rights to the code, and the people there who agreed to use the GPL were authorized to do so, then it is TS for them: they got their contract cheaper than if someone wrote the code from scratch, but they have to pay for it in terms of licensing.
If nobody authorized to make that kind of decision was consulted, then you are at fault, and the govt. is probably obligated to abide by the GPL (since the existing code you used was only licensed under it), but you are screwed.
If you were the exclusive copyright owner, you could potentially release the software publically under the GPL while giving the military a non-exclusive license to use the software in their system.
Really, your initial proposal should have stated that you planned to use existing software licensed under the GPL, and the final product would have to be distributed in compliance with that license, along with including a copy of it with your proposal.
If you have permission to GPL your code, but you want to be sure that your employer keeps it strictly GPL, then the best approach is to be sure to incorporate someone else's GPL code into the project. That way, even though your employer owns the copyright on what you did, they don't own the copyright on the entire project, so they can't close-source it.
Nevertheless, the copyright holder (the entity that commissioned the "work for hire") can change the licensing at any time and use the software in any way he wishes. If he wants to use the software in a proprietary application with a proprietary license, that is his right, regardless of any other license that the software has been released under. If the software has not yet been released and the copyright holder wishes to change the license prior to release, that is his right. So it is pretty clear that this dude is out of luck -- he didn't properly practice CYA (rule #1 of CYA: Unless it's in writing, it ain't so. Rule #2: If they want to come after you, make sure it'll be as publically embarrassing for them as possible).
-E
Send mail here if you want to reach me.
I'm not sure if this holds true in the U.S. but in Canada, unless your contract says differently, you (as a contractor, not as an employee) own all the source code you produce.
--
Oceania has always been at war with Eastasia.
Now, the above may not work if the development has been assisted by outside parties. See the thing is, if someone else has contributed to a GPL project, they own the rights to their contributions. So if the Gov't wants to take it from GPL to a proprietary license, they will have to remove any other contributions. Or else they will need to get the other contributors to sign over their rights to the code they wrote.
--
Twivel
It sounds like the initial consent was invalid and the GPL is not binding on the code you released.
However, I must admit that my eyebrows went up with the stated intention to incorporate this code into a proprietary system. I know that the government often pays for initial development and turns the results over to a company for deployment, but those companies are usually involved from the start.
More generally, software (and all IP) developed with public money generally belongs to the public. It isn't always released, esp. if it involves national security, but it doesn't sound like that would apply in this case.
Perhaps it's time to investigate a FOIA (Freedom of Information Act) filling. Not because you could use the code obtained by it, but to establish that the code *is* the legal property of the US Government, not a company. A FOIA would also uncover if the software was developed by public funds and improperly given, exclusively, to a private concern. This should give you enough information to take it to your congressman - and local investigative reporters - for further action.
(Finally, for the anal among us IANAL. Get over it - no sane person gets their legal advice from slashdot. Our function is to raise issues that can be pursued further with local counsel.)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
IANAL - Incompetent Advice Necessarily A Liability
Why do people ask advice on Ask Slashdot where a real lawyer is almost essential? If you're concerned about a licensing issue, especially with military brass, why would you even consider taking the opinions of anonymous amateur pundits on a for-profit advocacy weblog?
Get some professional, personal, specific advice from someone who is accountable for the answers they provide.
IANAL - If Advice Needed, Ask Lawyers
[
If your work is owned by the DOD as they claim, then it probably counts as government work.
Check out:
http://www.loc.gov/copyright/circs/circ1.html
it seems to imply that you may not be able to apply copyright in this case, and if so, then the GPL probably doesn't apply anyway because it's based on a license to waive copyright in certain cases.
All looks very complex. It depends on who owns the software.
-WolfWithoutAClause
"Gravity is only a theory, not a fact!"You did work under contract, an appeared to do something not in their interest... i.e. maintain copyright and release under the GPL. Well, give them an unlimited license. I mean, by all rights they should own copyright, so give them what they need.
/. wisdom, the GPL does not require a company to put there software for download, in CVS, etc. They only need to make source available to a third party if they don't include it originally.
:)
Additionally, the legal issues here are silly. This is the military, they have lots of guns, therefore, they make the rules.
Regardless, nobody here thinks that this was ethical of you. If you used GPL code (and can justify the GPL for that reason), then inform them of this and what that means. As they are unlikely to distribute, they won't care. If the code is being turned over to a company to make a program to distribute to the military, inform them of the situation. They can keep the system under the GPL by including a source code CD to the military and contract them into including a copy if they distribute it.
Contrary to
I mean, the GPL doesn't limit companies doing a custom job... it only limits companies trying to do a "mass market" job... which makes sense, the Free world Stallman refers to was a world of custom code, and with custom code, there is no reason not to make source available (that way you don't need to be the only one that can make changes, you can ethically turn down the project). Generic mass-market applications (Office suites, GUI OSes, etc) have an incentive to keep proprietary, because you can charge per copy.
While there are other "clients" that code for the DoD can be sold to, charges like treason come to mind.
And yet the military abused its power more and more, taking GPL'ed code and putting it in proprietary systems.
And the people took up pitchforks and soldering irons and marched to the Pentagon behind Stallman's Honda.
Secretary of Defense Donald Rumsfeld was in a meeting when he heard the chant, growing stronger with each passing moment. The voice of the people had reached into the corridors of power.
Outside, thousands upon thousands now called to the military, "All your base are belong to us!!!" and lo, it was so.
--
--hongpong.com
I don't know if anyone else noticed, but this is the military, not some publicaly owned company or such. GPL is fine and all, but if the military feels that it may endanger national security by having this system opensourced, then I honestly don't think there is much anyone can do about it.
I don't think it would be hard to make a case either way. Security through obscurity is bad, but leaving a system open that could possibly be exploited to hurt servicemen (by changing people's alergic reaction charts, etc) would be bad in case of an actual war (which would probably involve a cyberfont this time too).
Maybe we DID take the blue pill. You wouldn't remember anyway.
"Unless it was explicitly stated in the terms of that contract that the code will remain open, (which, I assure you, it doesn't) then the DoD can do whatever they wish."
No, no, no...
The government is a contractee, just like anyone else, and they're governed by the same laws. If they didn't specify licensing in the contract, and the contractor is the rightful owner of the code, then the government is stuck. The owner gets to name the license.
"The DoD owns the code, because they paid you to develop it."
Again, no. The developer owns the code unless otherwise specified by the contract. Just because the DoD paid the contractor does not mean the DoD has property rights to the contractor's product.
Let's try not to let fact interfere with our speculation here, OK?
If you think about this, you are in fact the bad guy here. You have knowingly tricked your employer into paying you for making something they can't use. Also, you unecessarily scare your managers away from GPL'd software. It is good that your software is released under the GPL. It is bad of you to enforce this on the company itself, who by any reasonable standard should be the legal copyright holders.
The ethical thing for you to do is to immediately transfer copyright to your employer, apologize, and stay out of trouble. (Please don't make a bad name for the free software and open source communities!)
The U.S. Government can not own a copyright. However, a contractor working for the government can own a copyright on work done for the government. The last Army (ARPA) contract I worked on, the contract let the researchers choose the copyright as long as they gave one copy to the Army, delivered to Fort Huachuka, so you may be in better shape than you think. You'd better look at the contract.
There are a few courses you can take here:
I have a conspiracy theory for you: Why is this happening so soon after Microsoft announced it wanted to lobby Government not to have public funding of GPL work?
Thanks
Bruce
Bruce Perens.
Disclaimer: I manage several US Military contracts that deal with code development.
As it seems like you are under contract (opposed to an actual General Schedule Govt Employee), I'll frame this comment accordingly. If not, or you'd like more info, please drop me a line at the above address.
Anything you develop under contract is owned by the government unless specifically noted otherwise in your contract. After all, it's government money that pays for the work, and they retain the right to do whatever they want with the code (or "deliverables" in contracting terms). Now, if you obtained written approval to release the code under the GPL from the COR (contracting officer's representative - whomever manages your contract matters on the govt side), there is nothing you can do.
To be honest, it would be in your best (legal) interest to take down any postings of the software immediately until the whole matter is ironed out. (Just to make sure you can't get nailed for further distribution after you were aware there was a problem.)
On a different note, as mentioned in other posts, sneaking the GPL past people who don't understand what it entails was a pretty shady move. I fully believe in the GPL and free software (I develop some myself), but you should take careful steps to prevent something like this in the future. Also, don't think that all government/military types are clueless idiots who are so entrenched in buracracy (sp?) that they can't tell which way is up. We do exist, and we are trying to educate the masses!!
If you read this, please let me know how things turn out - I'd be interested to know.
Sec. 105. Subject matter of copyright: United States Government works
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
-- Don't Tase me, bro!
Perhaps he doesn't own it...but if he was doing this work under the impression that use of the GPL was okay, did he include any existing GPL-protected code? What other names are now involved?
If the produce is contaminated by the GPL, the employer will have to decide how to deal with it. The simplest might be to leave it all under the GPL -- that only becomes an issue when the code is "distributed" to others. They can develop and use it internally, but have to make the source available to anyone who they sell or license the software to.
I don't know if the author is entitled to a copy. That's an issue between him and his employer.
I think a couple issues need to be clarified. As a general rule, when the government contracts out for original software development, the copyright is held by the contractor (or whomever the contractor may assign it to). When the government hires an employee to develop software, then the government "owns" it, in the sense that the employee cannot claim copyright on it. By law, however, with rare exception (such as government-owned academic institutions), works developed by the government are not copyrighted.
If your employer, the contractor, believes it owns the copyright, that's between you and your employer. If, for some reason, DoD has a legitimate claim of ownership, then it's public domain.
Incidentally, the third option -- a government employee developing software while off-duty, using only his/her own equipment, and not as part of his/her official duties -- then the employee keeps the copyright, but the government will insist on a no-cost license for government use.
cb
cb
Oooh! What does this button do!?
If, as you also say, that nobody with the authority to choose the license understands what you wanted when you proposed to release the code under GPL, then you did not, as you say, "follow the appropriate steps for applying the GPL to the software" which include, as a necessary step, getting the owners to agree with releasing the code under the GPL and understand what that means.
You can't trick someone into accepting the use of the GPL by keeping them ignorant of what that means and so, if you don't have the authority to make that decision yourself, you have to make the persons in authority aware of the ramifications of that choice. If I were in that situation, I'd apologize profusely for overstepping my authority and put together a document directed toward the decision-makers explaining the benefits of releasing the source under the GPL.
Further, I'd avoid lengthy discussions on the putative benefits to society for using the GPL and focus on things like potentially spreading the support burden over a larger customer base. Maintaining home-grown software is expensive and you might be able to justify that choice of licenses based simply on that. That's more likely to go over well with people who don't view this as a moral issue.
IANAL, much less one on military issues, but I would guess that the military can ignore the GPL and other IP issues if the code was sufficiently important to national security.
--
It could go either way, depending upon the details of your relationship with the persons for whom you were developing the software. Applicable law includes the Copyright Act work-made-for-hire provisions, the DFARS and any private law created by your contracts (written and oral).
The issues that need to be resolved first are (1) who is the owner of the software; (2) what licenses, express and implied were granted to the government, even if they didn't own it?
On the general facts, I can contemplate circumstances where any result is possible. You need a competent lawyer to sort them out for you.
You might not like them using your code in a closed system but when developing for something like a medical system there is a higher ethical question you must consider. Even if they use your code in a closed system there is the possibility is can save lives. If you try to bring a suit against it you might inadvertantly prevent them from using it and that might cost lives. You might not like them using your code, but if it does save lives ethically how can you truely be opposed? I know we would all like credit but I would glady give credit to help someone.
That code was developed at public expense, to that makes it MINE, goddammit!
If it's not classified (or even if it is) just file a Freedom Of Information Act request for the code.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
GPL and other open-source licenses actually accomplish much of what the government tries to accomplish with its contracting terms, which is that if you design something for them, they can go get more of them in the future made by somebody else, instead of having contractors saying to them "Heh-heh, those special $500 hammers are now $5000 hammers, since you didn't buy enough the first time, and if you want the plans so somebody else can make them for you for $50, the plans will cost you $10 million because we're the only one who knows OUR trade secret!" Because most Open Source license let anybody use the technology, this is pretty much prevented, but the government is used to an environment where the only way to accomplish that is by owning the software themselves.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
All of your base code are belong to us!
I've been starting to see open source emerging as a business model that gives consultant developers more control over their work in areas that might otherwise be work-for-hire, and it's a somewhat balanced business model that can still work for both sides. The specific examples I've seen have been in the telephony business - a large company will hire a small group that's working on something like an H.323 or SIP (or other ugly standard) implementation to extend their work but keep it open-source. For the small group, this gives them the traditional consultant leverage that the things you learn working for one client can be reused for the next client. For the sponsoring company, it means that people who have a lot of embedded experience are now working on _their_ problems, so they get to market faster) and they get market synergy because their products interoperate with any free products (or other commercial products) built with the open-source software. Telephony has the additional issue that there's typically a lot of customization required for specific hardware, so hardware-oriented companies use free software as a way to make it easy for customers to buy their boards instead of some competitor where the customers would have to license software to develop applications that use it.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
At this point, let me just ask a simple question:
ARE YOU INCOMPETENT, OR WERE YOU JUST HIGH?
There exists such things as ethics in the engineering profession. Two of the most important ethical rules are
- Always be honest and frank in all matters of your engineering,
- Always keep your employers well-informed on the major engineering decisions you make
... These aren't hard rules to follow. They're simple, straightforward, commonsense.If you put your own name on a copyright, despite the fact that as a work-for-hire you have no legal or ethical basis for it, and you compound everything by putting licensing terms on it without fully informing Management as to the requirements and meaning of those terms, and you get in trouble as a result... what? Are we supposed to have sympathy for you?
You broke the rules. You got caught. Your employers are going to do whatever the hell they damn well please with the source, and if you're smart, you'll get rid of all source that you don't have a legal and moral right to possess.
though I'm sure someone will fiercly debate it, the copyright should be held by the US ARMY, and so long as the software is in use on systems owned by them, there is no problem. Nothing is being distributed.
Just as if my company develops software for internal use on our own systems based on GPL software, we are not under obligation to distribute it.
The GPL covers how you may distribute the software, not simply how you may use it.
Releasing internally on systems owned by the copyright holder (which could be a company/organization), is not distribution, therefore, the GPL (which covers the terms under which you may distribute the code) does not apply.
According to 17 USC 105, "works of the United States government" are not under copyright restriction. U.S. government works are defined as a "work for hire" prepared by a federal employee.
All your hallucinogen are belong to us.
Will I retire or break 10K?
Just a minor point, you can use GPL software as you wish, you should have said "If I can't distribute your stuff without your license" . Even then a quick read of 7 definitions of proprietary leaves me wondering if the GPL is proprietary (if you just read the first two it is, read further and the doubt grows).
Never underestimate the dark side of the Source
No they or anyone else CAN distribute it, but the government works aren't protected by copyright, and thus are unprotected by the GPL.
Anyone can rip them off, modify it further, and charge or not; binary only if they wish.
Of course if the government took a GPL'd program initially and changed it the software itself would still be copyright the author- the government can't steal copyright by mere modification or addition.
-WolfWithoutAClause
"Gravity is only a theory, not a fact!"