Insuring Contributed Code is Legal?

WanderingGhost asks: "Suppose you start a free software project and have people from all over the world wanting to contribute (hey, that's good eh?) How can you tell if they actually have the right to contribute at all? Contributors may live in different countries and work for different companies, and that means different laws and different contractual agreements. Aside from asking the person (I've found that this doesn't always work), what else would you do? Is there some place where you can find all information about IP laws of different countries (for example Japan, India, China, Russia) just so you can tell what would be the 'default holder of copyright' if a work contract says nothing about IP rights?"

Comments

Not quite...

[asklepius]

I think you mean ENsuring.

This grammatic lesson brought to you by the letter, "e".

Re:Not quite...

[alibo]

The narrow definition of insure as 'protect by insurance' seems fairly recent. OED2 has citations from 1724, 1825 and 1864 of insure as 'To make safe, to secure, to guarantee (against, from): = ASSURE v. 1c, ENSURE v. 6', see insure v. 6. Merriam-Webster's dictionary of English Usage (1994) has several citations of insure as ensure, from 1969, 1982, and 1986:

• '... would insure against any akward second marriage' -- Mollie Hardwick, Emma, Lady Hamilton, 1969
• '... his sudden fame probably insured a backlash' -- Calvin Tomkins, New Yorker, 6 Dec. 1982
• '... held that school officials had the right to insure that a high-school assembly proceed in an orderly manner' -- William Safire, N.Y. Times, 24 Aug. 1986

The Columbia Guide to Standard American English, Merriam-Webster's Unabridged (3rd ed.), the American Heritage Book of English Usage, the American Heritage Dictionary (4th ed.), Random House Unabridged Dictionary (2nd. ed.), the Oxford American Dictionary of Current English, the Oxford Dictionary of English (2nd. ed), and the Century Dictionary (1889) all have the definition of insure as ensure.

Garner's The Oxford Dictionary of American Usage and Style and Pocket Fowler's Modern English Usage (by Burchfield/Allen) both restrict insure to the financial sense. Insure as ensure is not accepted by everyone, but insure as ensure is certainly no recent development or attempt to generate more sales by adding fake 'new words'.

You may not want to use insure this way (like Garner and Allen), but that doesn't make anyone who disagrees with you wrong or uneducated.

Universal Problem

[Anonymous Coward]

Scroll to A Brief History of Windows NT/2000/XP by Andrew Tanenbaum. This is a problem regardless of software license. The unique problem that open source faces is that people do it as well as working at the same time.

If it's a small project I wouldn't worry too much in any case. Otherwise, make the programmers agree to some statement before you'll accept their work (it could be an "informal" email). And always remember that estoppel is your best friend.

IANAL, but my key fear with using any copyrighted material is authors being able to revoke a license. Copyright and licensing laws are quite strong after all.

Re:Using the Linux kernel model

[RAMMS EIN]

``RedHat 6 used the BSD lp code and didn't fufill the 'advertising clause' (same with Microsoft and NT)''

Assuming that BSD lp is copyright the University of California, that shouldn't be a problem, because they scrapped the advertising clause (I think even if the license still includes the clause, it isn't valid anymore).

Re:Using the Linux kernel model

[Anonymous Coward]

Assuming that BSD lp is copyright the University of California, that shouldn't be a problem, because they scrapped the advertising clause

Kinda slow on the uptake. Back when they didn't include the statement 'portions copywrite University of California' is WAS still part of the licence.

Not shocking you were upmodded - pro-linux stuff always gets upmodded.

Slashdot . . .

[Dausha]

"Is there some place where you can find all information about IP laws of different countries (for example Japan, India, China, Russia) just so you can tell what would be the 'default holder of copyright' if a work contract says nothing about IP rights?"

You go to /., of course.

I'm in my last few days of law school, but IANAL, so this is not legal advice. However, I wrote a paper last year on what happens when the contract regarding an IP project is silent regarding the final holder of the IP (US specific). If you are an employee of the recipient of the IP, then you are not the IP holder, your employer is. When you're the independent contractor, then things get tricky. Depending on the amount of control the contractee has over your work (e.g. it tells you what to do more like an employer than a client who approves the final product), then at best you have the copyright, but the contractee has a non-exclusive license to do what it likes with the product. In 77 suits on the subject, an independent contractor tried to protect its IP rights and lost in all but a handful of cases owing to the non-exclusive license (which is governed by state contract law not IP law as Congress has excluded non-exclusive licenses by negative inference). The only trend I saw was that the larger the market capitalization of the infringing defendant, the greater likelihood that the court would find for the defendant.

The worst case was an architectural firm who drew up plans for a shopping mall development with intent to be the sole-source provider of architectural services. The plans were never on file with the city, but the plans were approved and the developer sold the project to another company. The other company hired its own architectural firm to redo the plans. The other firm erased all references to the original firm, made a few changes, and then submitted the plans as its own. Naturally, the first company sued, and the 9th Circuit said "you lose." The copyright was non-exclusively licensed to the original company through complete silence of the original contract, and so that license was transferred to the other company and finally to the other firm. The implication was that the architectural firm "intended" the other, competing firm to profit from its work---which is nonsense as no firm would want a competitor to turn its product into its own and profit without any compensation or acknowledgment.

Always, always, always get it in writing. Silence can be deadly.