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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?"
I think you mean ENsuring.
This grammatic lesson brought to you by the letter, "e".
Anyone?
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.
insuring your project against copyright lawsuit might "ensure" you get to keep contributed code..
well.. it was just a thought..
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I think the idea is to get contributors to send you something, signed, on a piece of paper. This is what the FSF does, and a few other large projects have followed their lead. In FSF's case, the piece of paper is also a copyright assignment, which you probably don't want as it puts a lot of potential contributors off. What you want to do is check out something like the following with a lawyer:
I hereby certify that the work I have submitted to is my own work, which I am entitled to licence under the provisions of , and that I am not aware of any patents or other legal issues that may prevent its use in . I hereby grant a licence to distribute the work under the terms of (attached).
You possibly also want to include a similarly phrased paragraph to cover future submissions by the same contributor, if you expect any.
What this does is (again, IANAL, so this isn't legal advice, check it with a professional, actual facts may vary from jurisdiction to jurisdiction):
1. Means you've performed "due diligence" before accepting the work. You've got a signed statement from somebody stating that there wouldn't be any issues. If you do have legal expenses insurance (and I'd recommend it; at least where I live it isn't expensive) your insurers will almost certainly want to see something like this before they'll agree to defend you in a court case. In a court case, I think it would be enough to show that you hadn't knowingly infringed any copyrights, which may be enough to prevent any damages being awarded against you. You'd have to cease distribution, of course, but in the end it would probably not actually cost you anything. It's probably not as good in the case of a patent infringement, where I believe strict liability rules apply, but that's substantially less likely to affect you, fortunately.
2. Means you've got a clear, easy to prove licence to distribute, so your contributor can't turn around and sue you. Yes, this is unlikely, but it's great to cover all angles.
A GPG-signed e-mail may be adequate, but check with a lawyer. In my jurisdiction, I believe it would be iff I could prove the key belonged to the person I believe it to, which can be a quite tricky proposition. In yours, it might not be acceptable at all. Check everything. A signed fax may be better than an e-mail. This is the kind of knowledge you pay a lawyer for.
"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?"
/., of course.
You go to
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.
What those who want activist courts fear is rule by the people.