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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.
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.
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.
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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
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.
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.
It's not clear. Copyright law has a big "gotcha" when contractors are involved. Without more info, I don't think the answer is clear.
The US Supreme Court gave a unanimous ruling interpreting "work for hire" in the case
COMMUNITY FOR CREATIVE NON-VIOLENCE v. REID, 490 U.S. 730 (1989)
The case discusses how to tell an employee from an independent contractor, and what standard to apply in each case to identify a work for hire. For an indendent contractor, the work for hire condition exists only "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." It also is only allowed for an enumerated class of works that doesn't appear to include computer programs.
In this case, Reid was a sculptor who made an oral agreement with CCNV to create a sculture for them. He did and they both tried to claim copyright on it. He was ruled an independent contractor and the contract did not create a work for hire because it was oral and because a sculpture isn't in the eligible class of works.
For this poster, it depends on what kind of employee he is. If he is an independent contractor, then he likely owns the copyright even without the agreement. If he is an employee, then he only owns the copyright if the agreement was in a written contract.
It sounds like things are even more complicated because he works for a contract agency. This presents a third possiblity. If he is an "employee" of the contracting firm, but there is no explicit written contract transfer of copyright from the contracting firm to the client as part of their contract, then the contracting firm would own the copyright.
However, a copyright licence like the GPL can be created much more easily than a transfer of copyright ownership. If the company agreed at any time to licence their copyright under the GPL, then that's probably definitive. The copyright owner can relicence the works they own, but they cannot revoke a licence already given, unless the licence specifically says so (and the GPL doesn't).
"More generally, software (and all IP) developed with public money generally belongs to the public."
No, it doesn't. As a former contractor employee, I was frustrated many times in my attempts to get ahold of publicly-funded software. In fact, a very large percentage of publicly-funded software ends up being proprietary, since the government agrees to those conditions to get some special consideration.
Don't confuse government use with public use--while the government can (and usually does) require unlimited government use of software developed with government funds, this right does NOT automatically translate to the public at large.
Let's try not to let fact interfere with our speculation here, OK?