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Can Employer Usurp Copyright On GPL-Derived Work?
An anonymous reader writes "I am a recent graduate, and I've been working on my own on a project that uses GPL-licensed libraries. Later a university department hired me, on a part-time basis, to develop this project into a solution that they needed. The project's size increased over time and soliciting help from the open source community seemed like the obvious thing to do. However, when I suggested this, my boss was not interested, and it was made clear to me that the department's position was that copyright of the whole thing belonged to them. Indeed, by default work created for an employer belongs to the employer, so I may have gotten myself in the same trap discussed here years ago. Even though I want to release my code to the public I don't know whether I have the legal right to do so. I did start the project on my own. And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project. Also, the whole project relies on GPL libraries, and without those libraries it would be useless. Can they still claim copyright and prevent me from publishing the source code even though it is derived from GPL software?" Some early commenters on the submission pointed out that it matters whether the libraries were licensed under the LGPL vs. the GPL.
no GPL violation if they do not distribute. what are your grounds for suggesting this is a GPL violation ?
All the work you did for them belongs to them. However, they may not be legally entitled to use it how they'd like. If it's based on GPL code and they don't want to release the whole thing under the GPL, they'll need to rewrite the sections under the GPL before they can have their way with it.
Let's be clear. You have no rights to do whatever you want with the code you wrote for them.
A lawyer will be able to help you.
What you need to take away from all this is the same simple advice Homer gave Bart. "Never try"
All you gain from trying to make this software GPL is a lot of heartache and lost time. In the worst case, you can lose a lot of money to lawyers and ultimately the whole source base and copyright.
Was it worth it?
Even though I want to release my code to the public I don't know whether I have the legal right to do so.
That sounds like "you need to talk to a lawyer" material.
IANAL, but my guess is that if it's in your contract, you'll probably need to demonstrate that you weren't aware of that at the time you signed the contract in order to keep copyright (or control of licensing) on your work. However, given that they hired you to develop a GPL product, it seems silly that any extended code produced is not also GPL licensed.
Ask me about repetitive DNA
HAD you done this on your OWN TIME using your OWN RESOURCES then this isn't part of the "temporary employment" you were in.
Sadly, you didn't. While you included open-source projects to be successful faster... the end result has a copyright owned by your employer.
THEY CANNOT use this without properly administering the rights of the open-source projects they use. These are license-dependent... and I'm guessing by your email that some? or all? are GPL.
It's a thorny issue, but there is an EASY ANSWER and a HARD QUESTION.
EASY ANSWER: Your university can contribute YOUR contributions under the GPL and open-source it.
HARD QUESTION: Which licenses of the software you used have conditions which PREVENT that software from being used in a software program/package with a conflicting license, and which NON-conflicting license would your "temporary employers" be willing to live by so that they can continue to use it.
Otherwise, your "temporary employers" are in potential violation of the licenses of the software included in the package they are using.
Nobody said this was simple.
E
I'd also like to note that I work for a large company that knowingly pays me to do exactly this all day. I write proprietary software using GPL libraries and such all day. We just don't distribute it.
What does your contract of employment say ? Does it say anything about copyright ? Did you read it before you signed ?
Do you want to continue to work for someone who attempts to steal your property ?
Gah. Every time this kind of story gets posted to Slashdot we go through the same conversations.
You entered into the employment and provided them with the code base, they most likely have a claim to it.
All the work you did for them is work-for-hire, they own it.
There's nothing wrong with using GPL libraries for internal proprietary software.. the GPL is a *distribution* license, you haven't said anything about distribution so I'm assuming they're not distributing it, in which case the GPL is irrelevant.
There's lots and lots of source code in the world, plenty of it is free for you to hack on, move on.
How we know is more important than what we know.
If your project is only used internally, i.e. if it's not distributed, the GPLedness of the libraries you're using plays no role. If you're not distributing, the GPL places no restrictions whatsoever on what you do with the libraries. Now, since you started the project before getting paid to do so, it might be the case that the step where you so to say 'gave' it to the university counts as distribution, and then there would be no alternative to an at-least-GPL-Free license for your project, but that is something you should ask a lawyer about, not slashdot.
You could have just transferred the generic part of the code back home.
No one would have given a damn.
You could even truly claim, you worked on the stuff on your free time.
Somethings it is better for both parties to not talk about the issues.
Patents Drive Free Software as Hurricanes Drive Construction Industry
1. The code you wrote is probably your employer's.
2. The rest (the GPL code you used) is not.
This means that to distribute the code you wrote they would need to abide by the terms of the GPL or rewrite all of the GPL parts. I've heard solid arguments in both directions as to whether internal corporate use counts as distribution, but when talking internal only it may be a moot point if none of the other users care to request the source.
If binaries are being distributed outside your organization without the offer of source and such, it's a clear cut violation.
I used to get high on life, but I developed a tolerance. Now I need something stronger.
Before they can have their way with it, yes - but they can use it internally - just as I can make derived works from GPL code and use them however I want, myself or in my company. What I can't do is distribute it, sell it, etc... but if I base my employers in-house time-tracking system on some GPL code - the company is under no usage restriction whatsoever, and is under no obligation to share those changes with anyone else.
If they do want to distribute the stuff outside their organisation, they'll have to do so under the terms of the GPL - other than that scenario, they can do whatever they want internally.
Well, I'd say that there are multiple issues at hand. First of all, I'm pretty sure you can release the original code that was around before you started the job without any issues. If you were to release the additions and modifications you made after the employment started, that code is rightfully theirs. After all, they hired you to work on the project for them, they didn't contract you to make changes to your open source project.
Location is an issue that might come up with the GPL. Different countries would interpret the GPL differently. Just because it's been tested (more or less) in the states doesn't mean that it's been tested elsewhere. Given the time of your posting, I'm assuming you're somewhere outside of the U.S. and therefore the requirements of the GPL aren't necessarily clear.
I had a similar project at one point. I would never use the GPL as I believe in free software, so I use a modified BSD license. But when my employer decided they didn't want to continue making my code open, I wrote it over (it was only 15,000 lines, so it took a few weekends) and BSD'd it. It's still not as complete as the original, but it's functional enough to be useful to others now.
I recommend that you keep in mind that you work for your employer and if you feel your employer has violated your trust, you're welcome to leave. Additionally, if you violate their trust, they're welcome to release you from your agreement.
While it may be legally OK to release the code as GPL, it doesn't mean that your employer will agree with your decision and may decide that they'd prefer to work with someone who's more attuned to their wants and needs.
Right - which is perfectly acceptable.
It seems to me like the best way to avoid this sort of problem is to fork the original project and develop each version in parallel. (basically, keep development separate at all times, no code sharing between the two AT ALL after the fork, etc.) That way, you get to keep control over your version and the employer gets their own customized version with all the necessary proprietary enhancements. Sure, it's double the work, but everybody wins and gets what they want. Since the pre-existing GPL code in the proprietary version is also in the original version, (assuming you release it at some point) it probably wouldn't be a GPL violation, but I could be wrong.
"It is a denial of justice not to stretch out a helping hand to the fallen; that is the common right of humanity."
you own your work by default. This applies in the absence of any other agreement. If you are an employee, your employment contract may override this.
Is your company distributing the binaries? If not, then they have no obligation to release the code. The GPL allows for modification and use within a company. It also never says that you must release your code freely on the internet, only that you must provide the source code to people who receive the binaries (if they ask for it). Once again, if your company isn't releasing binaries, they have no obligation.
Qxe4
Yes, they absolutely own the copyright if the terms of your employment make the software you write on the job a work for hire (almost certainly the case unless you have an explicit exception in your employment contract).
They also cannot legally violate the GPL, but they will not even if they keep the source unpublished as long as they provide the source code with any binary distribution to another party.
The key here is that the GPL does not force you to distribute the source unless you distribute the binaries--and even then, you only need to provide the source to the people to whom you distributed the binaries.
They own the parts you wrote as an employee of theirs. They don't own the parts you wrote before being an employee of theirs - though have fun proving which parts are which...
No you can't publish the source code that they own or release it under the GPL. If they distribute it then they will need to in order to comply with the license of those libraries and of the portion you wrote before being their employee (though I can see an argument that since you used that code in your work for them you gave them a license to use it as they see fit, not sure if that would fly though). They might never distribute it though.
Yes, IANAL. Yes, trusting me for legal advice would be really stupid. Yes, those are just my opinions and understandings of how these things work.
I have no clue about the legal matter. However, if you're going to use your own code for employment, perhaps you should have taken a snapshot of it, and forked it?
Basically, whatever progress you did from the beginning belongs to the company while being paid on the clock. Your original code prior to employment belongs to you. But I seriously doubt you can go back and implement their code or process back into your original pre-fork code.
Life is not for the lazy.
I can't stress enough that the people who are suggesting talking to a lawyer are right.
Still, if I may hazard a guess, if you started the project before you were hired, and you have a standard relationship to your employer, there's a good chance that both you and your employer have a claim to the overall work, because it contains parts that you wrote on your own, and parts that you wrote as their employee. In this case, then yeah, you don't have ownership nor license to the parts that they own--and over time, those parts may have become inseparable from the original parts that are yours.
Are you adequate?
Can you prove that you started the project as a GPL project?
Even if you do, can you prove your employer knew it was a GPL project and would continue to be so?
Otherwise, you've created an unlicensable project. However, unless they distribute it (out side of their organization) they can keep using it as-is.
Say you work for a big company like Google or Goldman Sachs, and their magic secret program uses libraries and other code distributed under the GNU GPL license.
They are under no obligation to publish as they use the code internally and do not distribute anything.
What if an employee leaves the company and takes the code to the magic secret program with him? It uses GNU GPL licensed code, which grants _him_ a license to redistribute it, because he has a copy of the program already.
Banu
If my understanding is correct (not guaranteed by any means), they would only be in violation if they released the binaries. Any work done before he worked for them is his copyright and he could release that but any work done after his hire is theirs and as long as they keep it in house, there is no violation.
Setting his threshold to 5, Sparky eliminated most of the trolls on /.
This is what it boils down to, and what people often forget or misunderstand about GPL. You can do with GPL code whatever you want internally as long as you don't distribute it. It is a license that specifies how the party someone distributes to has to distribute it when he/she does.
The code OP wrote on his own is on his copyright and he can distribute under the GPL. The extensions he wrote for his employer are owned by the employer (he has the copyright). If he wants to distribute it, the employer has to respect the GPL.
They can claim copyright because they own what you produced at the time you were employed there (usually, may depend on the contract).
Since you are at a university it might be smart to see if there are any regulations or memos that recommend or require that department-developed software becomes open source. I know that some countries, particularly in the EU, see that tax-payed software should become publicly available. Try make some suggestions in this direction.
NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
Honest question: does distribution internal to an organization count as distribution as described by the GPL? That is, if I have code subject to the GPL, and I distribute it to my employees without allowing them access to the source code, am I violating the GPL?
This question may be easily answered by another read-through of the GPL, but I'm too tired to do that myself right now...
Are you an employee or a contractor? As an employee, the onus to fall on the right side of the GPL probably falls on your employer. But as a contractor, you yourself might be legally responsible for proper adherence to legal rules around the GPL. They are, after all, hiring you to know this stuff.
As for ownership of the code you created before you were hired: ask HR for a copy of your contract. There is probably a clause in there granting them specific rights, but they might not cover everything. They will definitely walk away with a license for everything and ownership of the code that you created for them, but they might not own the code that you created before you were hired.
And if they don't want you to, you can't published the extended version of the code. They definitely own that. And welcome to the new academia, where all knowledge is a secret to be jealously guarded.
The ______ Agenda
IANAL and this is not legal advice. If you really care about this, you should pay for advice from someone who is a lawyer.
That having been said...
Any software you produced for them for which you directly received W-2 wages belongs to them regardless of the terms of the GPL. It is entirely their choice whether or not to release it under the GPL. They may or may not be violating the GPL if they do not, however any damages from that violation will be monetary; they will not compel the software be released under the GPL.
Any software you produced during hours for which you did not receive a wage reported on an IRS form W-2 almost certainly still belongs to you, regardless of any papers you may have signed prior to writing it. They can't stop you from releasing it, but they can very likely release you from their employ and/or withdraw any other association you may have with them if you do.
A letter from GNU's lawyer to their lawyer can go a long way towards resolving the matter. Writing such letters is one of the reasons the GNU folks keep a lawyer in their employ. Avail yourself of the benefit.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
IANAL. If you care about this, get one.
Is the project really worth the trouble? Both you and the department failed to take the proper steps when you were hired. If you push the issue, they may fire you. You'd likely be blackballed from ever working for the university again. If the matter goes to court, you might scare off future employers down the line. Companies get very scared at the idea of someone introducing GPL poisoned (their frame of mind, not mine) code into their products without disclosing it.
Unless this is some amazingly cool and important project, it might be worth just taking it as a lesson learned. Don't ever use code that requires a license in your employers' software without documentation (and for something like this, keep an extra copy at home), especially if it's something you wrote. Cover Your Ass (CYA).
Down the line after you leave the university's employment you might go back to your code prior to be hired and release that but it still might be pushing it. You might be legally right but that doesn't mean that you can afford a Pyrrhic victory.
Did you begin the project as a student (prior to being paid), particularly in any way related to a class? If so, some universities attempt to apply IP ownership to students' work.
From my understanding of the GPL, you were fine creating software that relied on GPLed libraries and not GPLing it, provided you didn't release it. The place where it kicks in is when you distribute (say, to the university). At that point, you were obligated to put your code under the GPL. Did you do so and if so, was it formal?
Assuming that there's no student clause, you own the copyright on everything you wrote prior to them hiring you. They most likely own everything after that. For you to have legally distributed the initial code to them, it would have to have been GPLed. If it wasn't formally GPLed, they could try to put you on the hook for using unlicensed software in what you wrote for them.
They could GPL their portion of it and everything would be solved. Or they could eliminate all of the original code and still use the GPL library and be legal so long as they don't distribute it.
You can get a GPL program, put a Public Domain part, add a Very Closed Source code, compile the whole thing, and work with it. You can't distribute the result, but you can use the result.
You can make a GPL program, get hired to continue working on this program, add a Public Domain part, add a Very Closed Source code... and the result can be distributed only if you donated to your employer your work wen you was hired. So probably can't be distributed.
IANAL.
-Woof woof woof!
Honest question: does distribution internal to an organization count as distribution as described by the GPL? That is, if I have code subject to the GPL, and I distribute it to my employees without allowing them access to the source code, am I violating the GPL?
This question may be easily answered by another read-through of the GPL, but I'm too tired to do that myself right now...
First / correct answer: ask your lawyer. This is a question for lawyers
second, more general useful and helpful but speculative answer. You probably don't mean "distribute it to my employees" you mean "install it on my computers which my employees use". In which case it's not a violation of the GPL. This is because it doesn't count as distribution because it is on your own computer and so you (the company) still really posses it. Full details of this may well vary from one state/country to another.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
The GPL uses the terms convey and propagate rather than distribute. Propogation is what you're referring to and the way I read it with my non-lawyer eye is... if an organization holds copyright to their changes or is using a publicly available version of the program(and therefore source is available from other channels) they are not in violation of the GPL.
My question to you is how are you able to possess code subject to the GPL yet deny your employees access to the source code? Why would you?
Is it possible to do two distinct forks simultaneously, if you're the one doing the coding on both forks? Couldn't your employer argue that your contributions to the personal fork are inevitably derived from the code you wrote for their fork? And if you write your fork first, and then soon thereafter write the employer's fork, isn't the employer's fork inevitably derived from your personal fork, since you wrote both?
I think a single person simultaneously (or even with weeks) writing both forks is a bad idea, at least from a legal "who owns this code" standpoint.
" I've been working on my own on a project that uses GPL-licensed libraries."
" since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project.
assuming you licensed it under the GPLv3
No, you were not employed by them at the time and had licensed it under the GPL. When they hired you, no copyright is transfered. even if you did build on the software it was GPL and has to stay GPL which means you have copyright over the entire code, except for the libraries. while you transfer copyright to your employer on code you make during your employment, they have to agree to the GPL to modify it and thus the copyright goes back to you.
GPL Quote:
9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.
-END-
basically, they can have copies, they can run it, but they can not modify it unless they agree. if they do not agree they may not modify it and use it or it breaks copyright. since they are modifying it they have agreed, so you should be allowed to release it as you wish.
BUT:
if he does give it to someone to work on it who is directly under the control of him and they do not give it out to some one, then it may not be a violation
GPL Quote: ... This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.
You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force. You may convey covered works to others for the sole purpose of having them make modifications exclusively for you, or provide you with facilities for running those works, provided that you comply with the terms of this License in conveying all material for which you do not control copyright. Those thus making or running the covered works for you must do so exclusively on your behalf, under your direction and control, on terms that prohibit them from making any copies of your copyrighted material outside their relationship with you.
-END
I'm not in anyway close to a lawyer =p
so you may want to call the SFC and ask them about it
http://www.softwarefreedom.org/about/contact/
Someday we'll hit the human carrying capacity. And the band will just play on.
NAL, but here is my interpretation
1) The work you did prior to being employed by them belongs to you. Unless you agreed to assign those copyrights beforehand they have no rights to that code. In practice proving what was yours before hand might be difficult.
2) The work you did for them is a derivative work. While they have rights to the new code (depends on the specific laws but generally that is the case), they have no right to your original code so it might well be useless without the original code.
3) The GPL clause only kicks in on distribution - non distributed changes are not required to be GPLed
4) If they use the GPL librarys and distribute the code, then they would be obligated to distribute the code changes
"I am a recent graduate, and I've been working on my own on a project that uses GPL-licensed libraries..."
Where you started with coding can have some issues too, if the code you developed on your own was also developed on university computers they may have some claim to that too, especially if you developed the code for an assignment or something similar. This too can be dependant on factors such as the country you are in, and how it may relate to the license the libraries are under.
In the end, as long as the employer has no intention of distributing your code, then they own all the code you have developed for them, and as for GPL or LGPL licensed libraries, there should be no violation issues.
I'd also like to note that I work for a large company that knowingly pays me to do exactly this all day. I write proprietary software using GPL libraries and such all day. We just don't distribute it.
That could come back to bite them quite badly. What if one department gets spun off as an independent business at some point in the future? Not solving this problem up front could create some hidden costs for your employer.
http://michaelsmith.id.au
Any work done before he worked for them is his copyright and he could release that but any work done after his hire is theirs and as long as they keep it in house, there is no violation.
This varies very much from country to country. In many European countries the work you do outside work is your own. In the US that should also be true, but your employer is allowed to create contracts which take away everything you should own. So, the summary doesn't give us enough information. You need to know a) where exactly this is happening b) what contracts were in place c) what exactly the guy did; what discussions he had and exactly what comments are in the code. Generally he shouldn't post that information since his posting would be discoverable in any lawsuit. He should discuss everything with his lawyer since, in civilised countries, that kind of discussion protects any speculative things he may say that might be harmful to him from being available to his opponents.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
I dunno, it was just a theoretical question. I might be too tired to think about anything legal...
I suppose the issue might come up if you have code written by a parent company, who then gives the compiled program to a subsidiary, without also giving them the source code... but I'm just making stuff up as I go.
All the work you did for them belongs to them.
You don't know that. You are just guessing. He was "hired" but what does that mean? What does his contract say? Lots of people are hired to work on things which don't belong to their employer. He says "I did start the project on my own. And, since no written or verbal agreement was ever made to transfer copyright over to my employer"; that means that their software is a derivative work of software which is legitimately his copyright. Who owns the development after that point may be more complex. Most likely them. Depending on where he is he should probably resign now and send a cease and desist notice asking them to immediately destroy all unlicensed copies of his software. It's probably a complex decision which will depend exactly on what who said to who when, but on the information in the summary you can't make that decision.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
Yes, the the employer has no rights to the code written *before* you were hired. That is copyright to you. All the stuff you wrote while working for them is theirs.
..or if they distribute to students? That seems a likely scenario, and would invoke GPL requirements for providing source at requests
All the work you did for them belongs to them. [...] You have no rights to do whatever you want with the code you wrote for them.
It depends on the jurisdiction, and possibly what kind of employer it is. In particular governmental and some other public employers have restrictions in some countries - e.g., in Finland university teachers and researchers have copyright to what they create in their work. Also, there may be nationally binding agreements with trade unions that have similar effects on some professions.
As a rule, though, with a private employer, and in some countries with all, you are right.
This is a question that can only really be answered by a lawyer familiar with your circumstances and the laws in your jurisdiction. For example, by default, in Canada, if you're hired as a contractor to produce a work, you retain the copyright on that work (or so I was taught in my 100-level Business Law class). However, I don't believe this is true in the US. It's also not true in either country if you're hired as a salaried employee.
But really, plenty of other people will be offering legal advice, and the reality is that this matter won't go to court because it's not worth the time or money for you or the university. You can get a lawyer's opinion that you're in the clear to release your work, but even that's only so helpful to you -- if you threaten or bully your employer, that may just set them against you. (On the other hand, it may be just the thing! Maybe they need to see that you won't be pushed around. Different people respond to different tactics.)
The most elegant solution to your problem is politics. Convince your boss's boss and your boss's respected colleagues that your work would be better off shared -- people's opinions are ultimately derived from the opinions of the people they respect. You've made good use of an open-source base, right? Make sure they understand that there's value in tapping into that community. Allay their fears. Show them the positive side. Get people on your side.
If you can swing this right, it won't matter what the legalities are because the one of the university's officers will sign a waiver disclaiming interest in the code and you'll be in the clear for sure -- and your boss will be pleased at having done something good.
Sure, you should have got the signature before you started working; then you wouldn't have to spend cycles on this problem. Still, it may be fixable.
And if that doesn't work, just remember: the implementation is twice as good and ten times as quick to write when you've done it once before!
My question to you is how are you able to possess code subject to the GPL yet deny your employees access to the source code?
This is just a thought, and IANAL so I could be completely wrong here.
What if the organization, eg CorpInc, took software released under the GPL and made modifications to it. Then they installed the modified versions to their own computers. The modified version is clearly under the GPL, because it is a derivative work. However is CorpInc required to give it's employees that use those computers the source to the modified version? If they are, then by the terms of the GPL the employees can give the source, and binaries, to others.
The contract didn't convey copyrights, therefore the copyrights are still his, NOT his employer.
Copyrights must be transferred by explicit contract. Not "oh, you paid me, so I guess your demand must be right".
Since the work contains GPL stuff, the university get a non-transferrable license to the combined work and a transferrable right to distribute/sell to others under the GPL.
Absent any contract specifying ownership transfers, it's still the author owns copyright.
NOTE: if the university don't abide by the GPL they are in license violation even if the contract DID convey copyrights unless they have the GPL part taken out.
This is no different tan any other copyright license.
It doesn't matter what they want - you're in a much stronger position than them.
The copyright on the original, developed before you were employed by them, very probably belongs to you. The final project is a derived work of this original. Distribution of a derived work requires the consent of the copyright holder of both the original and derived work - you can prevent them from distributing the project at all (even internally) by refusing to grant a license of the original work. Simply 'remind' them that they do not currently have the right to use the final project at all.
An easier problem than they have with BSA. After all, the spun off company won't have the original license and that original license will have the parent company on it not the spin-off. Therefore they'll need a new license for all commercial software.
This is an additional cost for the company when spinning off a branch.
NOTE: the GPL is satisfied if BOTH the parent and the spin-off get GPL rights to the code. This doesn't cost anything.
That's mostly irrelevant. We can safely assume that his employer got the source code from him, so there is no GPL violation even if it applies.
The trouble he got himself into is this: He (probably) still owns his own work prior to the employment. His employer likely owns the copyright to the work he did during his employment (depends on the contract). If he can't convince his employer to open-source the project, then his only option for continuing is to backtrack to the state the project was in before he started working for them. But then he'll have a hard time making any improvements from there, because he knows the source he wrote for the employer. He will knowingly or unknowingly create a derivative work.
If you want to continue working on a project after employment which involves writing code for the same project, then you should write that into the contract: Either the code is open-sourced or you get to keep the copyright and license it non-exclusively to the employer. If you can get neither, then the project is no longer yours.
It is impossible to say what's right here without knowing a lot more about the situation. Are the libraries GPL or LGPL licensed? Are you merely linking with the libraries, or is this product a modified version of one or more of the libraries? Is it being distributed outside your employer's organization, or only being used internally?
This should answer your question: http://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic
"The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization."
This strikes me as mostly correct, except that it's not clear to me that (1) is quite accurate in the submitter's case. We don't have the details here, but my money would be that the submitter's situation is more like the following: when Alice started using her original code under the employ of Bob, she didn't tell Bob in any way that she was licensing that code to him under GPL--and in fact, I would bet that there was no conversation about licensing at all. So Bob has some sort of implicit, non-GPL license to Alice's original code, that allows him to at least use the code and modify it for his own uses.
The legal resolution of this situation would come down to either getting Alice and Bob to explicitly agree after the fact on what that license is, or failing that, having a judge decide it. My guess, however (and I am very much NAL), is that Bob can't claim that he has an implicit license to distribute Alice's code, since the contract between them (I guess) doesn't give Alice any special consideration that could be construed as compensation for granting such a license. In simpler terms, if Bob wants to claim strong rights over Alice's original code, and he can't prove that she explicitly granted him those rights, he better be able to prove that at least he somehow paid or compensated him for that code beyond what he paid her to extend it.
Are you adequate?
Assuming the company owns the copyright to the modifications they made, no they wouldn't need to provide their modified source to their employees. One of them must have the source to have developed the modifications but there's no propagation in what you described. With the GPL, the copyright holder is the party of reference, not the coder, employee, PHB, or anyone else.
Even better answer: http://www.gnu.org/licenses/gpl-faq.html#InternalDistribution
No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.
That could come back to bite them quite badly. What if one department gets spun off as an independent business at some point in the future? Not solving this problem up front could create some hidden costs for your employer.
One thing to remember if you don't worry about the source code itself, but about obligations that you might enter into by using GPL'd software: By distributing executable + source code _together_ you have done everything that the GPL demands from you. Nobody has any rights towards you at all. So if you spin off another company, give them the executable and the source code.
If you don't do it that way, then suddenly _anybody_ in the world has the right to request source code from you.
I'd say most people interpret the GPL's distribution requirements as only applying once the project has been distributed externally.
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
The FSF does not have standing to sue unless they own Alice's work that Bob is distributing. Alice would have to assign copyright of her code to the FSF for them to be able to do so.
Are you adequate?
Leave the university and do a "code rewrite", as long as they can't prove you copy and pasted the work that you did under their employment, they have little legal standing and unless this is a real programming gem I doubt they will send the lawyers after you... just look at what happenned to SCO.
Even if they do violate the GPL and distribute the program, you do not have any right to release the code against your employer's wishes (only a judge has the ability to force the release of code). If you do so, you will be sued or possibly charged under trade secret laws.
Everything you've coded is your employer's property and although the GPL may supersede their ownership rights, there is still a hierarchy of rights of which you are not a part of.
consult a lawyer, but IMO the key thing you said is:
"I did start the project on my own. And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project."
it was yours to start with. they paid you to do some extra work on it. there was no transfer of license.
they may "own" any of the work-for-hire stuff you did while employed by them (depends on the nature of the employment - usually, in simple terms, if you're a contractor, you own your work but if you're an employee, they do) BUT THEY DO NOT OWN THE COPYRIGHT, AND THEY DO NOT OWN YOUR PRIOR WORK.
BTW verbal agreements are worth the paper they're written on - doesn't matter what they claim you said, if they can't produce a signed transfer agreement, it means nothing. same as if an employer verbally agrees that you will get paid quadruple for working overtime, unless that's standard practice where you work it's unenforcable unless it's in writing. and same as if the salesman says you can opt out of the contract at any time for any reason without penalty - if it's not what the contract says, it means nothing.
never trust a verbal agreement. they're worthless. this is true anywhere, not just in employment.
BTW, crap like this is why i *NEVER* sign an employment agreement without carefully looking at the clauses to do with ownership of work. if it says anything other than "what i do during work time on work equipment is yours, what i do on my time on my own equipment is mine" i send it back for another edit. i've had one or two bosses quibble about that until I ask them if they want to start paying me for 24 hours a day rather than 7.25.
(that question was always a good answer to the occasional managerial whinges about long hair and beard too)
What if the organization, eg CorpInc, took software released under the GPL and made modifications to it. Then they installed the modified versions to their own computers. The modified version is clearly under the GPL, because it is a derivative work. However is CorpInc required to give it's employees that use those computers the source to the modified version? If they are, then by the terms of the GPL the employees can give the source, and binaries, to others.
I don't believe so, since you have a company installing its own software on its own computers. That's not distribution/propagation/release/whatever.
Rampant carbon sequestration destroyed the Dinosaurs' tropical paradise. I'm here to help repair the damage.
You should have read your contract before you signed it, but if you didn't, then now is definitely the time to do it.
Does the contract say anything about who owns the code you write during working hours? Does it say anything about who owns the code you write during off-hours? And, since the project was apparently based on a private project that existed before employment started, does the contract say anything about that?
If the contract doesn't say anything, then the employer probably doesn't own any of the pre-existing code, and can only use it with your permission (though you should always check what kind of weird legalities exist in your legislation). Maybe permission was implicitly given, but who knows, it might still give you some leverage. You might be able to claim that your implicit permission was based on the equally implicit assumption that the rest of the code would become part of the same (open source?) code base.
What level of granularity do we accept for a "company or organization"? Would the University of California, Berkeley, need to GPL something they are giving to other UC schools? In some ways, they're all part of the UC system, but I'm curious if UC Berkeley would be considered a separate organization from UC Riverside or UC Irvine.
"the department's position was that copyright of the whole thing belonged to them"
It doesnt matter what license the department releases the code under, it will still belong to them, only a license transfer will make it not theres.
If they merge other peoples copyrighted work with theres then neither party owns the copyright to the whole thing.
Maybe suggest releasing the code but maintain there own seperate fork, it would provide some accountability/transparency, might help with feedback and bug reports.
It could allow "outsiders" to experiment in taking the code in new directions that management are risk/averse to, if it works out then the company can implement feature/idea with there own money (being careful not to infringe).
work done as an employee is typically owned by the employer, but it's my understanding contractors own the copyright unless specified in the contract. They are self employed and can distribute code with whatever terms they agree upon.
It depends on the country laws, contract and employer.
My contract is based on french telecom legal template which says:
- code specific to the assigned work: all copyrights belong to the employer.
- code *not* specific to any assigned work:copyrigths are shared by the employer and the employee (you need an agreement to work on that code). Namely if the employee departs from the company, he will keep the copyrights.
Of course, there may be more about this in the french law (I was told, french copyrights on code always belong to the employee). And of course, an employer aware of the open source ways would let the copyrights go to the employee or at least be shared.
The main issue with the shared copyrights: the employer would have the right to close the code produced by the employee. And that's a very big issue for GNU GPL coders! You know... those guys who want to have the best open source code installed by default on all systems.
In the US that should also be true, but your employer is allowed to create contracts which take away everything you should own.
I'm fairly sure that there are limitations on what sort of contracts you *can* make, in Australia if not in the U.S, to stop people from being tricked into crazy things. They can't enforce a contract that entitles your employer to harvest your organs, or that excludes you from ever working for anyone but that employer in your life. I'm pretty sure a contract that has fine print letting your employer take possession of your house and car, likewise, is not enforceable. And obviously a contract isn't enforceable if you have to break the law to fulfil it (unless of course it's the sort of contract with breach clauses involving your kneecaps and the wearing of concrete boots).
Rampant carbon sequestration destroyed the Dinosaurs' tropical paradise. I'm here to help repair the damage.
Use the identity of someone else to contribute to the GPL project.
Your employees are internal... your users/clients are external... if you distribute a device to your users/clients, it's external and your must publish GNU (L)GPL code. One of the main purposes of the GNU (A)(L)GPL is to have a legal leverage in order to get optimal code.
But they MUST keep the code GPL, because it's based on GPL code.
GPL clearly states even the owner of copyright on given work can't remove GPL from it.
By hiring you to continue to work on a GPL'd code, they set themselves up for it. The code still IS GPL.
The worst they can do is to keep it "closeware", e.g. GPL code used only internally, never distributed at all. But if even one copy ever "leaks", it's out in the wild and free for all.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
If they own the copyright they can choose not to license it under the GPL to the public. They can then choose to delete the
entire source tree. I'm not too sure if they can't also compile the source files into binaries but assuming they can, where the
buck stops is linking with GPL licensed code that is not explicitly covered by the LGPL. Right. No linking allowed. Whatever
they do, if the executable contains GPL licensed code they can not run it. Even debugging the program and even if they
step only through non-GPL code, it's not permissible. To the IANAL who said the GPL kicks in when you distribute it, that
is not true. You shall have no use of GPL code even for internal in-house purposes unless you fulfill all stipulations in the GPL.
For example when you modify GPL code (a single character in a source file is enough) and even if you just use that in-house
you are required to publish the modification or the license grant by the copyright holder is null and void.
In short they can either try and replace whatever GPL code there is if that's at all feasible or they can choose to scrap it
entirely. If the portion of code that is _possibly_ owned by the university is useful or can be easily made useful by itself
then they are free to do that as well and choose to do with that what they will.
As I see it the situation is this:
Poster has small GPL project
Poster takes employment to develop project into a solution
Employer claims copyright of solution and original GPL code incorporated
Now as the author of the code the poster could release it to someone on terms other than GPL (dual licensing). The question is whether he has done so, intentionally or otherwise. It is certainly possible that the contract of employment said that all the copyright of all sources used in the solution will belong to them. The only ting they can't do is remove the GPL from the original project, other people will still have the right to use and develop that.
That's LGPL.
Any time you work where you are producing intellectual property, you should insist on conditions (on paper) that allow you to retain rights where they are generated. If you have a brain that they want badly enough, they're not going to say no. I do (admittedly I don't work with FOSS) and no employer has worried about it yet.
For example when you modify GPL code (a single character in a source file is enough) and even if you just use that in-house
you are required to publish the modification or the license grant by the copyright holder is null and void.
You're wrong.
http://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic
"The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization."
if you wrote the software using the employers time and resources, its their project and you had no right to decide on the licence without their consultation anyway. if you wrote it on your own time and resources and you decided that the GPL was the licence to go with, you have a conflict or interests in bringing that software into your employer. the only real way to get around this is to have two seperate branches of the product, the closed product for the employer and the open source gpl version that you produce in your own time
portfolio
Ahh..., but is the accounting of time spent strong enough to protect the programmer?
/. idiots).
Work done on your computer on company (or University) time is typically the property of the company (or, in this case, the University) - utilization of any company (or University) resource is typically enough to make it a work product of one's employment. The question isn't if all resources used were company (or University) resources.
If there is not strict time accounting (clock in/out and what you spent your time on while "at work") of both your professional time and your personal time and the code you're working on is generally the same as the code you work on at work, you're going to need a whole lot of high priced legal help to defend your position (and if you had the resources and inclination to pick a fight in this domain, you simply would have asked your attorney this question instead of asking us
Generally, if you care, quit your position, wipe your hard drives, and in the future carefully partition your "volunteer" work and your paid work.
Yep, it sucks -- but I've seen people spend a whole lot of money on lawyers for naught on cases like this. Or, just play the roulette wheel and figure that this code really isn't that important and no one is going to fight you over anything short of outright code theft.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
I hope http://www.gnu.org/philosophy/university.html helps. You may also ask the funding body for help if it is an external one. Finally there is the Freedom Of Information Act. But first try to resolve this within the institution you are working for. Resolving means that you get a copyright disclaimer.
Why dumbasses fall for all that "your work done here doesn't belong to you" bs, I will never know. Unless you expressly give ownership of your copyrighted works over to your employer via contract or other legally-binding paperwork, if it is your "original work" IT IS YOUR IP!!! As it is "your" IP, they have no right over it's use (unless you've entered into a service contract or licensing agreement previous to it's creation), or distribution! However in the case of GPL libs and such, I believe that even "YOU" are not legally capable of re-distributing it (unless you've credited the "creator" with contribution ($$$) or attribution (some note in your code attributing the material's creation to it's "real" creator) , so your employer's claim of ownership of the GPL'd sections is faulty and moot.
-Oz
Under the GPL, you have to distribute, or offer to distribute, the source to anyone to whom you distribute the binary, and with the right to redistribute in the same way. I this case, this would imply that the OP has to offer the source to all other departments that use the code, and that they then have the right to distribute as they see fit. However, they are presumably bound by the same university regulations. However, it would give the OP a way round a single uncooperative manager. If an internal user could be found with a more positive attitude to Open Source, that user could request the source and then redistribute it in any way compatible with the GPL i.e. return it to the OS community.
Consciousness is an illusion caused by an excess of self consciousness.
The key words here are:
no written or verbal agreement was ever made to transfer copyright over to my employer
No contract = no copyright transference. I am not a lawyer, I am not your lawyer, talk to a lawyer before doing anything else; but in my opinion, the employer doesn't have a leg to stand on in this instance.
This work is licensed under a Creative Commons Attribution 3.0 Unported License.
Actually the copyright on any code written "during work time" (or otherwise understood to be part of a job, be careful with that), is not the coder's to licence as he pleases, so it does not even matter what is in the employment contract. The code will be considered a "work for hire" (google that exact term for more information : it is the term used in copyright law, and is legal jargon)
His employer owns all rights to the code, except for 2 things :
1) the employer cannot deny the coder actually wrote that code (up-front attribution is not required, on-demand confirmation is required, e.g. "I want to hire person X, did he actually do the work in his CV on project Y ?" must be answered truthfully)
2) the coder gets to show, demonstrate, explain the functionality of the code to anyone he pleases*, **
(and -but be more careful- the coder is free to distribute extracts out of these materials for educational purposes)
* which can include limited distribution, e.g. in a job interview conducted over mail, however it must be clearly understood to not be used for anything other than portfolio work
** this explain bit can be used to get the code into the GPL program legally. The essential point is that the coder gets the work in, with his only involvement being explaining what it does to someone else, WITHOUT exchanging any of the protected work. In response to specific questions you can then (afterwards) use things like pseudocode. The coder cannot legally do this himself, but there's no law against him guiding -no matter how closely- another to do it. Given legal precedent, it would be very wise not to touch the computer of the guy doing the commit for any reason. If possible, document the exchanges made (do them over email ?, note down somewhere (in your gmail box for example) that you talked over the phone and what you talked about, or provide small "meeting reports", again mailed to yourself, that'd be a great help to any lawyer if it ever becomes a legal case)
Distribution, creation of derivative works (a second implementation of it by the same coder of the same thing would most likely be considered a derivative work, especially if parts of the code would turn out to match perfectly), and/or use in any manner other than described above is a violation of copyright law (and most likely also a serious violation of your employment contract)
And, frankly, don't tell your boss you're doing this. There's no legal necessity here, just common sense. Oh nothing in this post is legal advice for any case at all, it is merely a small summary of part of copyright law for informational purposes. It might be wrong, not applicable in your state, ... so use at your own risk. Contact a lawyer for legal advice.
>The code OP wrote on his own is on his copyright and he can distribute under the GPL
Unless his contract of employment states otherwise, as many do.
I'd say at a guess (IANAL) that the software has been "distributed" to the OP as a requirement of performing his work. The GPL allows him to then fork and continue to use that code for non-work related purposes - even releasing it off his own back under the terms of the GPL. Presuming that the compiled binary links in any form of GPL'd code this is all perfectly fine in my view. The only thing that would be not permitted is stealing the copyright and re-licensing the parts of it that he doesn't own the rights to. But given time he could re-implement those parts so he did hold the copyright to them.
Of course, I am not a lawyer and the courts still do not fully grok the terms of software licensing and source code (black magic as far as they're concerned) so doing that could end badly even if the intent of the GPL is met.
I drink to make other people interesting!
I don't know which country you are in but in the UK for example, this is just not true. Copyright absolutely rests with the creator unless there is an explicit transfer of ownership stated in the employment contract. Any part of the work he created before joining them is his. Anything he created while working for them only belongs to them if the appropriate clause is in the employment contract.
This is somewhat pedantic, but I think it is important to point out that you are writing free software. You are giving your "customer" (i.e., employer) all the freedoms necessary to be free software. You're even giving them the copyright (I assume). You can't get any more free than that from your perspective. Whether or not they choose to distribute it further is their business. They are perfectly free to do so under the GPL. But they don't have to if they don't want to. That is their freedom.
Of course it is also proprietary, meaning that your employer holds exclusive rights to the software and these freedoms. Because they are the only users of the software, free and proprietary are not mutually exclusive. Again, while this pedantic, I think it's important for people to understand what "free as in freedom" really means. Doing what you are doing is perfectly fine from a free software perspective.
This is somewhat confusing to me. The person in this question started the project on his own, BEFORE he started working for the university. As such, shouldn't he still own the copyright for it unless he explicitly transferred the copyright over to them?
Atleast all the code he had written before he started working for them are his as far as I can understand, but how about the code he has written afterwards? It is still part of a project he started and owned.
Also doesn't every recipient of the binary+source get permission to redistribute that?
Justice is the sheep getting arrested while an impartial judge declares the vote void.
Personally I think he'd be going at this from the human angle.
It's a university?
The careers of Academics are generally heavily based on publishing the work they've done with their names attached.
For coders it's less explicit but having a large body of published work can also be important and academics generally get the idea of open source.
Talk to some senior academics you get on well with.
Talk about it the same way as you would if the university were not allowing you to publish research done on uni time.
They may not like the idea and weigh in on your side which would be a big help.
Worst case you don't really get anywhere.
Best case some bullish professor will arrange things so your work gets published.
You may end up with some academics name on the code along with yours.
Storming about and arguing about who owns the code is very unlikely to do any good since you probably don't and the GPL doesn't help you on that score.
Allies in the right place are worth a thousand lawyers.
Read your contract. What does it say about copyrights?
By the way: where are you located? If you're in the EU, chances are you own the copyrights.
In short: read up on local authors rights and copyrights. Trademark laws do not apply.
Also, do you work on this project in your own spare time? If so, chances are you can shove the GPL down the throat of your employer.
In Turkey, University owns anything and everything developed in campus, either for academic work and/or R&D projects. Usually developers are paid by companies established in University, for loyalty management porposes, if the product has a kind of commercial nature. In the commercial sense it is usually fair enough, assuming that professors really adds more value to the project than assistants. A similar assumption exists in RL companies, that Manager's added value is more important than engineer's...Unfortunately there are only a few academic instutions here that really understands FOSS concepts, a far as an instution can understand anything at all, given that there is no brain attached...
Also doesn't every recipient of the binary+source get permission to redistribute that?
Yes, they retain that right. The main point he was making is that you are only required to make the source code available to someone you gave the binaries to, not the general public. That is one point of the GPL that often gets misunderstood, you do not have to give your GPL code to the public per se, only to those who you selected to have the binaries. If they further distribute the binaries, you are not responsible to provide the source code to those 3rd parties. This means you can sell GPL binaries, and only provide direct copies of the source to those customers, and never the "public". This is a feature of the GPL, not a bug.
Tequila: It's not just for breakfast anymore!
And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project.
In the US, transfer of copyright must be in writing. They do not own what you created on your own unless you sign something. A contract upon hire would have taken care of this. If you signed no such contract, they own bupkis.
Let me reiterate:
The default with regards to copyright law is that the author has copyright and it *must* require a *written instrument* to sign over copyright. The law is _very_ clear on this issue.
This is what SCO tried to get around with the Asset Purchase Agreement. Since there was nothing saying they bought Novell's copyright to SysV Unix, they don't own it. They lost twice, once in front of a judge as a summary judgment, and later in front of a jury.
Don't be bullied.
Don't put up with this shit.
--
BMO
You give them the source? Unless they then also intend to distribute it, what's really the problem.
People replying to my sig annoy me. That's why I change it all the time.
again, IANAL, but I think this is the way the legal system sees it...
or to phrase this in a more technical way:
person X releases a project P under the GPL
Y hires a set of people Z to work on P. they develop P'
the contract between Y and Z basically says that the people in Z sign their ip rights to the code they developed on their worktime over to Y (I think this is the point where they think you signed ALL rights to the project over?)
but because of the license, Y must release P' to X
I don't think this circumstance changes, just because X \in Z...
The MAFIAA is a bunch of mindless jerks who will be the first up against the wall when the revolution comes
You have to distribute source with binaries or offer to provide source to anyone who asks, good for three years. (at least for GPL 2). There is a small exception for academic institutions to only have to provide source to direct recipients of binaries, IIRC. Been a while since I read the GPL.
You need to go re-read the GPL then. Let me help, here's the relevant part of GPL 2:
3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:
a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)
The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.
If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.
The relevant parts of GPL 3 are sections 4 through 6, but they only add to the older license. In particular, they allow distribution via the Internet, but they do not force such distribution; you can always use the older methods.
Nothing for 6-digit uids?
How does his contract of employment affect the copyright of code written, and licensed under the GPL, before the employment started. The OP stated that he was 'employed' to develop (ie adapt and extend) an existing solution to meet a specific need.
He owns what he wrote before he started.
After he started it's likely that anything he did belongs to the university.
The GPL has zero effect on this unless the uni ever want to distribute it externally.
First: If the project was under the the GPL and the libraries are under the GPL, the result must be under the GPL.
Second: Depending on where you live, you might or might not have given over the rights to your employer. You need to take your contract to a lawyer in your country and ask them. As usual, slashdot is _not_ the place to get specific legal advice; we can just blabber about generalities.
Thing is: The GPL does not matter unless you distribute the software to anyone. Before that, the licence does not matter. So you need to check the _second_ point first. When/If you release the software and the libraries are GPL, it's a clear-cut case.
No idea if your employer can go after you for "wrongfully leading them to believe they owned this stuff" though...
Pardon my bluntness, but that's relativist bullshit. The code is written by an employee of a company which has no intention of publishing its own software under an open source license. I emphasize the ownership because it is not the programmer's code at any time. He does not write free software which he licenses to the company, which then merely chooses not to redistribute. He's an employee of the company, so the program is effectively the company's creation. If you write a program on your own time intending to sell binaries and to never show the source to anyone, are you writing open source software? No, the act of publishing the source with the rights to make changes to it is what makes software open source. In fact, all software is created as proprietary software as a result of copyright law.
ONLY if they want to distribute the code. If they only want to use it in-house they can lock it up in chains of gold for all the GPL cares. The GPL is a copyright license and thus only deals with limiting COPY rights, not with limiting USE rights. That is what EULA's are for...
It is important to make this distinction. By not making the distinction you only play into the hands of those who wish to denounce the GPL and other free software licenses. They could use your lines to show the dangers of using these licenses, even though what you say is wrong.
--frank[at]unternet.org
Plus, if the employer does not open source the project then the resultant code can only be used in-house as to propagate it would violate the GPL licence of the original code.
Honest question: does distribution internal to an organization count as distribution as described by the GPL? That is, if I have code subject to the GPL, and I distribute it to my employees without allowing them access to the source code, am I violating the GPL?
Honest answer: No.
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack perspective.
But then again, can you survive a law suit? Do you want to fight them if they just fire you? Probably not - and most of these corporate types know it.
Need an ISP in South Africa?
Under the GPL, you have to distribute, or offer to distribute, the source to anyone to whom you distribute the binary,.
It is often stated that you must offer to distribute the source any anyone to whom you distribute the binary, but GPL-2 requires more than this. It states (3.b) " Accompany it with a written offer, valid for at least three
years, to give any third party," (My emphasis). So the requirement to provide the source code is not restricted to those to whom you distribute the binary but it must be made available to anyone who requests it.
So, as I understand it, there are 3 pieces of software here. First are the GPL libraries; let's call them 'A'. Then, you have the software you did as a hobbyist, let's call that 'B'. Finally, you have the work for hire, called 'C'. C depends on B, and B depends on A.
It's clear that they own C, and there's nothing you can do about that. On the other hand, you own B. If you publicly distributed B under the GPL, you are probably screwed here. In that case, there's nothing to distinguish B from A, and your only recourse might be some technicality in the GPL. For example, if you used the GPL v3, you may be able to use the stuff about software patents to prevent your university from using it.
However, if by releasing B under the GPL you mean you just used GPL software and considered it free, you may be able to turn around and teach them a lesson here: assert ownership over B, and demand that they produce written proof otherwise. You could demand that C be open-sourced in return for being allowed to use B.
That being said, though, you were stupid to do closed-source work on your own open-source project. Not only will you have to fight for access to your own work, your knowledge of the closed-source work will probably 'taint' any contributions to the open-source one to such a degree that they could probably claim work you do on it, even if it's off their payroll.
In the future, don't be so trusting of your employer. When I do open-source work for hire, I create a private github account and make the repo publicly available and GPL-licensed from day one. All of my work on the clock is then contributing to an externally owned and operated repo.
Oh, and I get the corporate overlord's approval of open-sourcing the thing in writing.
Someone else answered it in a long fashion, but to put it short: You only have to provide the source code to those entities you provided the binaries to, NOT the general public. Otherwise would create an undue burden on the original programmers.
If you make Program A, give me a copy with source, and I sell the binaries for $10 each (or just hand them a disk free), you are NOT responsible for providing the source code to those customers, *I* am, and you would have the legal right to force me to give them the source code since *I* distributed the binaries. I don't have to provide a copy of the source to anyone else, only those I gave/sold the original binaries to.
Tequila: It's not just for breakfast anymore!
Is it not considered "distributing the binary" when I as an employee run some customized software on my company-provided machine?
Should I as a human have the right to the source code at that time that the binary is distributed to me?
Or does corporate personhood take precedence?
I feel fantastic, and I'm still alive.
In a nutshell, no they cannot. If they do, first they are in violation of the GPL and if they continue, then they themselves are in violation of Copyright laws.
My karma is not a Chameleon.
The blunt truth is that he made two stupid mistakes.
1) He didn't discuss the university's position on this and get it made clear in the contract in the first place, and
2) He came to Slashdot for legal advice.
It's been shown countless times that Slashdotters in general *do not understand how law works*. They assume that one can deduce how the law works logically, and that's how it is.
Well, it's not. The only way to know about how the law works is to learn how it works. It's not always logical, it's not always the way it *should* be (in a reasonable *or* in a logical world). I've actually been criticised for pointing out the latter, as if pointing out that the law doesn't work in that idealised way meant I endorsed its flaws (which is another stupid thing to do, but Slashdotters aren't always the detached paragons of common-sense that some would like to see themselves as).
Even if they understand the GPL in isolation, this case requires one to know how this relates to employment laws, jurisdictions, "works for hire", blah blah...
Bottom line- being an expert in IT and related fields does not qualify you to answer legal questions. IANAL, and neither are the vast majority of those contributing to this thread. And the problem is sorting out those who really *do* know what they're talking about from those who simply think they do.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
A few years ago, 2 I think, I was working on some code for a prof to help a robot play soccer. At the time it was just assigned to us and he screwed off and didn't really talk to use for a month. He gave my partner and myself a lib to do Image Capture that was HIGHLY proprietary and actually sucked unbelievably bad. My partner and I said screw it and picked up a GPL licensed image capture lib and started to program, when I was done I released all the code I had done to a public code forum to share it. When my prof found out he went insane, he was so pissed it was kind of funny. He kept telling us that open source is a really bad idea and we should have known better then to use GPL code. I told him to F*** off and we passed. The year after I was working for another prof doing some more code but she wasn't in my field. Again I grabbed some GPL code spun up the solution, released it and gave it to her. She was so afraid people would now hack into her software because it was public code she refused to use it and told me I should have known better. Again I told her to F*** off and I passed. The main point is that Prof's seem to hate Open Source, not all of them but enough of them. They just can't admit it's a better way of thinking, kind of like the church and science, science the better way and the church well it did kill people for saying the earth wasn't the centre of the universe (very intelligent).
1. You own the code created prior to you beginning work for the university.
2. You and the university co-own the final code (as it was derived from your code) UNLESS some employment agreement you signed gave them sole ownership when you began work (unlikely).
3. And yes, absolutely the university can not release the source even if it uses GPL libraries. People constantly get this wrong. The university is only required to release the source to the project if it DISTRIBUTES the code outside of the university. And then it need only distribute the code (or least offer to distribute the code) to those whom it distributed binaries. It is not obligated to distribute the source to the general public, at least not because of the GPL.
The employer can only claim copyright over the portion of the work that was created under their employ. However, the sticky bit is that they licensed the original work under the GPL, so they must not distribute their additional code and, if they do, they must make it available under the GPL AND share copyright on the code with the original author.
Very true but it's still a worthwhile avenue to try since academics are more likely to see things in a more open-source friendly manner and often have at least some sway over the departments.
If this is a university, publish it under GPL/BSD. You guys are public employees and all your work are belong to us.
I do not know the answer to your question, but it depends on how the UC system is structured. The answer to the question depends on the answer to this, if UC Berkley files a patent, is the patent held by UC Berkley or by UC? If the answer is the former, then if UC Berkley modifies GPL code, they would need to distribute the source code along with the software if they give it to another UC school. If the answer is the latter, then they would not.
The truth is that all men having power ought to be mistrusted. James Madison
[Disclaimer: This is not a troll or a flame. I’m just really shocked.]
I can not believe the utter absurdities mentioned on Slashdot.
Most comments seem to say something like “The code belongs to $someone”.
Now read that again: The code belongs to...?? Code belongs??
What the hell?
It feels like the FUD and propaganda of the **AA have completely succeeded in brainwashing people that you could actually own information. What an absurd concept!
How can you possess something that can not be stolen? How the hell do you own something, that you can not control? I mean, not ever! If you pass it one, your control is gone. If not, you can not prove its existence. It is not a physical object. You can’t possess it. You can own the container. Or offer the service that produces it. But that’s something different. All the premises required for something to be ownable, are not fulfilled for information.
It just makes so sense. How can grown up people with a healthy sense of reality believe such fantasies?
I know that all humans start believing something, when they just hear it often enough. That’s kind of a side-effect of us being social beings. But come on. This is like believing in Santa. Or God. Or saying that you own happiness. Or the color magenta. You know: Things that would have gotten you locked away 100 years ago, and certainly require therapy nowadays.
I’m sad. Because it feels like they have won, and we are to blame, because we the experts — of all people — bought into their lies. We were supposed to be the last defense. Am I now really standing alone??
Oh well. At least they have to walk over my dead body before I give up.
Any sufficiently advanced intelligence is indistinguishable from stupidity.
Depending on the circumstances, the employer may or may not be legally entitled to use the code how they like. But there's enough discussions here on what constitutes development. But...
The developer may not have been legally entitled to collect a paycheck to work on GPL software on company time.
You hear horror stories all the time going everywhere from rent-a-coder to some utility bundled on the Microsoft CD, where the employer had the expectation that they owned the code, only to find out a developer cheated and used some GPL code.
Since the developer even said that there was no written of verbal agreement with the company, the default assumption would be that they are paying you to write code that they will own.
I don't want to get into legal quibbles here, but the developer has basically defrauded the company if he got paid to deliver code that they can't use because of the license.
Can you construct some sort of rudimentary lathe?
Is it not considered "distributing the binary" when I as an employee run some customized software on my company-provided machine?
Should I as a human have the right to the source code at that time that the binary is distributed to me?
Or does corporate personhood take precedence?
No it is not considered "distributing the binary", as long as it is only installed on the company owned machine. If I write some code and install it on my computer, it is not distributing the code if I let you use it on my computer. It only becomes distributing when I allow you to install it on your computer. It is not about "corporate personhood" (except in so far as that applies to ownership issues), it is about who owns the computer the code runs on.
This gets more complicated when one organization rents computers from another, I do not have an understanding of the different permutations that come into play in that sort of circumstance.
The truth is that all men having power ought to be mistrusted. James Madison
First of all, I don't think judges and courts like tricks. They can just say they don't buy it. (Though I've never actually known a judge.)
I would also think that by working for an employer, you granted them the copyright and/or license to use that work, previous licenses notwithstanding. I don't know that the employee can distribute the work either, as the new and improved version isn't the same work as the original, and to my way of thinking, the employer owns the copyright to the new version and has a royalty-free license to use the old version. I don't think a court would buy the argument about simultaneous forks.
Under the GPL, you have to distribute, or offer to distribute, the source to anyone to whom you distribute the binary,.
It is often stated that you must offer to distribute the source any anyone to whom you distribute the binary, but GPL-2 requires more than this. It states (3.b) " Accompany it with a written offer, valid for at least three years, to give any third party," (My emphasis). So the requirement to provide the source code is not restricted to those to whom you distribute the binary but it must be made available to anyone who requests it.
My understanding of this (IANAL) was that with each distribution of the product, you must accompany that specific distribution with an offer to provide the source to anyone whom requests it - i.e. each distribution comes with an offer to get the source code, which need not be excised by the original person who received the binary.
Meaning if you're selling a product that is GPL'd and no one buys it, then you never have to give the source code to anyone who asks. If Company A buys it and Company B (no relation to company A) asks for the source then you don't have to give it to them as they don't have a written offer for the source code. If Company A buys it, gives their written offer of the source code to Company Z, then Company Z can ask for the source even though they didn't buy it.
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Because you did not sign a contract concerning the code or project then it would seem the following scenario best fits you.
Any code produced prior to employment can be applied under any license you wish it is owned by you and protected by lack of contractual agreement, this also forces code written afterwords to be GPL'd as part of the project.
Remember it is true that any work produced while getting paid is the product of the payer unless otherwise noted, they cannot simply assume the body of work as their own. They may attempt to argue legal custody so keep this in mind (and maintain your documentation). You own any code produced prior to employment (as long as you were accurate in your story): You can counter argue that they attempted to use employment as a means to acquire the project sans contract and thus have no legal right to it. You can also argue that they hired you for coding but not the specific code and because you have a prior body of work that goes into the project in deed like a book, you own the code (all of it) and they are licensed to use it for the duration of employment at the cost of employment. A more liberal interpretation may also take you to copy write. Code is writing for a computer to interpret and should fall under the copy write category. As an author is hired to produce a book you are hired to produce a program. Because the core code and in deed original versions of this application fall under a private enterprise you can argue ownership; now that said, this can effect your employment opportunities negatively.
A good idea might be to engage in contract talks for the employer to purchase ownership or license with a limit to duration the right to keep your original code from GPL. While I am a giant fan of GPL, I do recognize the needs of employment and if they are wishing to in truth own the code, make sure you get a solid of what it is worth now and with possible future earnings in mind. Having them agree to contract with term limits allows you to give them decision rights on licensing for the duration of your contract (do not make it indefinite) and gives them time to have the original base code or ideas replaced by their own closed source work. Your work is worth something, get a lawyer (of your own not the company/employers) to write out an equitable contract.
You can try, then when you go to court, the judge will smack you in the face for trying to sneak around your legal obligations.
When you write something on your own with clear knowledge of the requirement for your employment, using knowledge you gained FROM your employment, you have a really HARD time trying to convince the court that it really was 'your' work.
The government and courts have been dealing with people far sneakier than you for several thousand years.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
Perversely, it's not QUITE that simple.
Unless there is a work-for-hire clause in the contract or employment agreement, it can be said that they may have an interest in the rights on the code in question , but it can't be said that they actually OWN it unless you've got one of those clauses in place or an explicit assignment of rights in play. Moreover, there may be explicit restrictions on the work-for-hire aspects. Some will lay claim to anything you come up with, regardless of whether it had anything to do with your work or while not on the clock- others will only lay claim to the work you directly do for the employer and variations on a theme in-between.
Now...most employers have work-for-hire clauses in the mix, so that's where your assumption comes from. But it's not a foregone conclusion, nor is the one you stated a foregone one.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
It all rests in what his employment agreement/contract states. If it lays claim to any intellectual "property" work while under their employ, that explicit transfer will have been deemed to have transpired. Depending on that, is whether they actually have a claim on things here or not.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
IANAL, but my understanding is the same for US Universities, they own the work you do while you are in school. If you make a commercial product, they can demand a share of the money coming in if the work was done while a student.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
You and most other commercial developers who actually need to eat.
I only release my work under a BSD license for this very reason.
It means my boss doesn't give a shit what I write at home as long as its not related to our core business. He rests safe in the knowledge that any thing I make at home and use at work is safe to be used at work.
It also means I get contributions back from professional developers at other businesses who use my code (and our companies code, some of which is BSD/Apache/MIT licensed).
If we used (L)GPL, no one would want anything to do with our code, and everyone would be poorer for it.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
There are several issues here. The most pressing of which needs expert lawyer advice. When the software was given to the university, was there a transfer of copyrights? If not, did it have GPL notices intact?
If the answers are "no" and "yes" respectively, the university may not be able to externally distribute their modifications without also licensing them under the GPL.
What is definitely clear is that the university holds copyrights on anything he developed while on university time. The uni can do whatever they want with that code so long as they don't distribute it with the original GPL'd code. There are a lot of ways this can vary though. If the Uni's modifications are really binary dynamically loaded plugins, it's not so clear cut. A court might find that the plugins aren't derivatives, but original creative works instead.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
Check with your school's Technology Transfer group. While it is true that Universities generally want control over everything created while you are working for them, most of the time the value to the University is not worth their time or trouble. If your work will generate actual revenue for the University (revenue that will actually offset the work involved in licensing and all that), they'll be very interested. If not, they will most likely leave it up to you to do with it what you will. At least that is how it works at my school.
The employer may be committing a GPL violation. You should bring that up with your employer and also inform them that it can cause a lot of badwill.
The problem with this is that they paid you to write the code. If a developer who worked for me suddenly started saying I had to release the code he had written as he had taken from a GPL project I would insist he went reworked the code to not use any contaminated code.
The problem is that this may still not allow the university to close source the project and keep what they think they already own . If this was the case, then wave goodbye to your first graduate job as your manager is going to be pissed, even if it was his fault for not realising this was an issue sooner.
The moral of this story is that you have to be very careful before you appropriate code from open source projects when doing commercial development. If you are being contracted to write something, it all depends on whether you will have copyright on the code after the work is finished or if it will belong to the client. If you working by the hour, then you employer will certainly expect to own 100% of the code after you finish so you need to check with management whether they mind publishing the source.
Generally, the answer is that you should never even look at GPL code at work in case it gives you ideas. The employer can never usurp the GPL, but they can fire people or maybe even sue for damages if they think you have been dishonest about whether you were writing the code in the first place. I know that legally some of these thing may be arguable, but who wants to as legal arguments get expensive real quick.
I dont read
1) the employer cannot deny the coder actually wrote that code (up-front attribution is not required, on-demand confirmation is required
The Employer can say "I have no comment to make on that matter." And refuse to provide a yes or no answer, as to whether the coder wrote that code, without recourse by the employee.
2) the coder gets to show, demonstrate, explain the functionality of the code to anyone he pleases*, **
Not necessarily. Well, demonstrating functionality is probably 'safe', but only if there is not a NDA involved.
I agree with #1, and sort of don't also. The university should have taken a look at the license on his software before committing time and resources to improving it. If it was GPL'd before employment(and had copyright notices intact), the Uni can't distribute derivatives without also licensing them under the GPL.
I don't think there is a judge alive who would honor any submarine copyright-transfer terms of an employment contract, so unless he transferred them to the University with an intent to do so, he still owns the original works up to that first day of employment. The university cannot simply usurp his copyrights on the original works by employing him.
Your rant is apt for a lot of cases, but this particular issue is something a lot of /.'ers really understand. Most lawyers, if you ask them about GPL and copyrights, their eyes will glaze over. This guy really needs to decide how important this is to his job.
If push comes to shove, his job will be over but he can prevent the school from distributing his derivative works under other-than-GPL terms.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
I am not a bookmark manager, but what the hell. Those folks actually spent a bit of time thinking about this shit, you know. If you're still confused after reading the FAQ, direct your question to GNU or FSF, not bloody slashdot.
May we live long and die out
loophole.
Thats from the summary ... the guy already knows the answer, he just doesn't want to accept it and is hoping slashdot can give him some way to get around the agreement he made with his employer.
Good job there buddy, you've just shown the world you have no intention of keeping your word or honoring your obligations.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
Only the portion of the software that was actually licensed under the GPL can be redistributed in that way.
That would be the libraries the program links to. The ownership and licensing of even the code written by the person before being employed is potentially in question.
Also, should he attempt to release any part of it, the employer may not like that -- it could result in disciplinary action if not legal action.
Propagation with subsidiaries varies by jurisdiction and case law. So this is a non-starter on slashdot.
As far as the original question goes, no it's not a GPL violation. Many companies use GPL software without making the source code available to every employee. In fact, the ones that I've seen don't do it because they would prefer security through obscurity. If you know how their software works, getting privileges or access you shouldn't have is usually a bit easier.
As far as company owned GPL software on the home computers of employees, that's a tricky one and there probably isn't one straight answer. Probably would vary by relevant case law.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
Since he personally wrote the original code he adapted and extended while employed, the entire body of his work is potentially considered a part of the work for hire.
In other words, the University could potentially lay copyright claim to all code he wrote, even the code he wrote before employment started.
In that case, they could change the licensing from GPL to something else.
And (at their leisure) change the code to not require any GPL libraries, or even ask their employee to do that.
Close. They're not obligated to give the source code to recipients until it's requested. Small difference, I know, but it's more accurate.
We have a similar system here in Minnesota called MNSCU. It's like 20 schools in a system. Here, I can say it would count as a conveyance. Each school is incorporated individually.
If California is like that, the if UC Berkley gives a GPL program to another UC member school, they owe them source code also upon request. This depends also on case law from the 9th district. I don't have time to look it up right now, but if you wanted some cases to look at, just let me know.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
That's not correct. Unless you did the work as a university employee, or someone compensated by the university for doing the work, there is no transfer of copyright or assignment of any rights, just because you were a student at the time.
Now if you have been granted a scholarship, assistanceship, or employment with the UNI. There may be some term of the contract that assigns ownership to the university.
There may also be some matters that have special terms -- for example, students conducting a masters or P.h.D. thesis, may be required to assign or sign certain rights to the school, over their final submission (such as the right to publish), before it can be accepted.
But that is an exception to the rule.
What if one department gets spun off as an independent business at some point in the future?
If that department needs to distribute copies of the software : Then yes. Big problems.
(Copies need to be made of the software, and therefore the copyright law kicks in : You can't make copy of things you don't own, unless you have a license. And the program's current copy license [GPL in this context] gives you authorisation to make copies, but only if you also hand over the code and anything else needed so the others can play with it).
So the new company must rewrite the GPL parts or find LGPL/BSD alternative or release the source of everything linked against the libraries.
If that department only continues using it internally : then not a lot a problem. They still can use it.
(Usage is not controlled by copyright licenses, these control only copies. EULA *could* address usage, but they are not considered valid in lots of juridictions).
The only problem that arises is that after the split, the parent university and the new private company won't be able to send each other copies of the software, so development will need to be forked.
(Although, sending *patches* and compiling on its own might be legal).
That's why it's preferable to use *L*GPL or BSD components for proprietary projects.
LGPL will work like the GPL be only at the level of the component. So if a library is linked against a whole project, only modifications to the library itself needs to be released - the rest can remain under any proprietary license.
BSD will let the company re-license the thing to something else, if they want.
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
Explain the GPL, that your work is based on pre-existing GPL source and what that means (that modifications to it are also GPL). Make it clear that they are not required to expose/distribute the source unless they distribute it. If they're still staunchly against GPL'ing the code. Proceed to explain that in order to break away from the GPL code, you'll have to start from scratch and find lgpl or bsd libraries to replace the gpl ones or write them yourself. Give an honest assessment of how long it would take you to start the project over like this. They're your employer, if they're willing to pay for closed source and absorb the overhead of not leveraging open source libraries then go for it! More money for you. :)
Can they still claim copyright and prevent me from publishing the source code even though it is derived from GPL software?
Anyone can CLAIM copyright to anything.
Preventing you from publishing the source would only be accomplished by a judge ruling in a court case. It's that simple.
Ownership of copyright can be determined by a judge, too.
That said, if the company knowingly employed you to work on a GPL'd product, their ownership of the copyright may be more difficult to present to a judge.
While you have a point, and professors are more likely to be receptive to this kind of thing, publishing research is really the wrong metaphor here. It's more like a professor with a patentable invention - and these days, the patent almost always goes to the university automatically.
Warning: Apple/Nintendo fangirl. Likes her electronics cute & cuddly. May be rabid.
Maybe I'm missing something here, so correct me if I'm wrong. But the TFA says the code was already GPL'd and they THEN hired him to refine what was already GPL'd. Now how exactly can they now claim ownership of a GPL'd work? I thought the whole point of GPL was to keep corporations from coming along and placing free code in lock down, ala BSD?
Now I get that they can do what they want internally, hell they can claim they are king of the moon behind closed doors, who cares. But it seems to me if that code takes a single step out of that department it would be a clear GPL violation, and if it isn't, what exactly is to prevent ANY corp from just paying the writer of an original GPL software to write a single add on and then claim the whole thing for themselves?
ACs don't waste your time replying, your posts are never seen by me.
You could end up quite screwed here. Just because you GPL'd something doesn't mean it's always and forever GPL. This is not to say what's already been released as GPL can be taken back. That pee is already in the pool so to speak. However, as long as you are the copyright holder you're free to license the code as you see fit. The GPL doesn't lock you in unless you assign the rights to FSF or something. The problem you run into is you may have signed an employment agreement that compels you to transfer code ownership. As such you can lose the copyrights to code you have authored before your employment because of your employment agreement. It's also important to remember, even if state laws give you rights, those rights are not free. You need money to defend those rights.
The long and short of it is don't mix your open source project with work for hire projects without a specific rider on your employment agreement that spells out ownership in exacting terms.
Level 1) If I read the summary correctly, you wrote some code before you came to your employer. If you GPLed that code, then the code written prior to your employ is yours to do with as you want. Unless you somehow signed something to give rights over to your employer.
Level 2) Any changes you created to the project while under the employ of your employer. These belong to him/her/it. You cannot distribute them without permission. If your employer does distribute the code, because of the GPLed libraries and stuff, the employer must provide source code. But if your employer does not distribute the code, then he/she/it is free to keep it a secret and not release it. These are the rights under the GPL, it mostly protects the rights of an entity that the software is distributed to. But without distribution it doesn't apply.
I'm definitely not a lawyer. But it seems to me your best options are the following:
1) negotiate to buy a license to the software. If you get your employee to distribute it to you somehow, then you can demand the source and you are free to do what you want with it (via the terms of the GPL the employer cannot revoke your right to modify the code if you have the program distributed to you).
2) if your employer ever creates a commercial product from your code, buy it and then demand the source code and you are free to do what you want. If your employer ever makes a commercial product cheaply, buy a copy and then demand the source code, under the terms of the GPL
This is a very good point. Make the right arguments about academic freedom with regards to your code. So long as the code is not an implementation of business logic, a university will be hard pressed to win an argument over your academic freedom to publish, particularly if you intend to publish in a manner which could bring more accolades to your university.
The company hired you to improve an already existing piece of work.
It is irrelevant whether or not you created that work in the first place, as you say that there is no agreement to transfer copyright, etc, to the university of the system you had written before. Therefore if the previous system was GPL, the university should make its changes GPL, or negotiate with the author of the original system (you) for its own license.
Using GPL libraries shouldn't be a problem however. Indeed as an internal project they can make their own changes and not release them anyway.
I think you'll have to suck it up for now, the university owns the work you've done. Of course if the university is publicly funded, then really it is the taxpayer that owns it, but know how that goes in general. Just take the money they're paying.
Once you've finished doing the changes, you can go back to the previous version that is yours, and add in the new features again, from scratch, building upon the knowledge and experience you got from doing it before!
So what constitutes distribution ? Obviously a commercially-developed piece of software has a purpose, whether internal or external.
Is the act of deploying an app to corporate desktops considered distribution, in the eyes of the GPL ?
What about software that provides a web interface ? Is that distribution ? In today's fad of SAAS and SAP, the lines are very blurry.
-Billco, Fnarg.com
Wish I had points today. That's one of the more worthwhile commentaries I've seen in a while.
You realize, of course, that you'll tarred, feathered, put on the rack, then drawn, quartered and (worst of all) accused of being a Republican for suggesting that Slashdot posters don't know the law from a hole in the ground. Tsk, tsk.
Mod parent up. There's sufficient contention over the ownership of the copyright that even a fork might be the unowned derivative work of the poster.
Playing the 'good guy' here might work, as in a post-employment appeal for use of the code, with employer copyright GPL'd credit. The university may have copyright but subsequent distribution of the code by the university could be questionable without distribution under the GPL. They may not want to distribute the code, believing it to be proprietary and of value to them. You still can't fork that code, only rewrite it, perhaps painfully, from stem to stern. Legal counsel might be well advised-- and cogent counsel at that. Most attorneys don't know copyright and GPL.... so a specialist might be advised.
---- Teach Peace. It's Cheaper Than War.
You should actually read your local copyright law, because it can depend.
Out here, in Latvia the copyright always belongs to author (developer), unless specifically stated in employment contract.
So, the company can use the code you written for them, they are granted rights do distribute, etc, but you're still the copyright owner - and you can release it as GPL or whatever you wish.
Absolutely yet even when patenting it they still publish it.
At an University, are Students considered employees?
No in most cases.
I would say distributing to Students would count as
distributing outside the organization.
Especially if a usage few was involved.
Tim S.
1) If your libraries where GPL and properly published before starting to work with this guys:
They can either use the code only in-house, and never distribute it, or distribute it under the GPL.
2) If your libraries where LGPL, and properly published before starting to work with this guys:
They can distribute the code under any license they want, and link it to your LGPL libraries.
In any case, they do not own the code for your libraries. You can still do whatever you want with them.
WTF am I doing replying to an AC at 5 A.M on a Friday night?
I don't know about these kinds of tactics. If you make a big deal about this, then you'll likely end up burning bridges. You need these people as a reference later in life. Since most new graduates are having a hell of a time finding work right now, you can't afford to be dicking around. You might win in the short term, but you'll lose in the end.
Anyone following the SCO case would know that in the US, copyright transfer can ONLY be done with an explicit writing.
Saying that the Uni has an "interest" in code written before he was hired is just posturing. There is no such thing in law as an "implicit copyright transfer" - SCO tried to argue that, and failed.
I'm amazed at how quickly people forget ...
Then "internal use only" that supposedly lacks distribution effectively does not exist unless all members internal to the organization enter into (and never violate) an agreement to never convey/propagate/distribute the GPLed code, which is the entire executable and all of its source code now (not merely the GPLed libraries).
But then again entering into such an agreement is itself a violation of either GPLv2 or GPLv3 because neither you nor your university can impose more-restrictive legal terms than was contained in the GPLed libraries, even for users within your department or your university. So any person in the university who has access to the binaries can request the source and then convey/propagate/distribute both the binaries and the source code worldwide without any restriction whatsoever (until the GPLed libraries are replaced by nonGPLed libraries). Effectively, legally (FSF's nonbinding legal advice notwithstanding), there exists no such thing as "internal use" that assures a lack of conveyance/propagation/distribution in an attempt to not comply with the GPL's terms.
Maybe I'm missing something here, so correct me if I'm wrong. But the TFA says the code was already GPL'd and they THEN hired him to refine what was already GPL'd. Now how exactly can they now claim ownership of a GPL'd work? I thought the whole point of GPL was to keep corporations from coming along and placing free code in lock down, ala BSD?
Where this becomes a "gray area" is if the OP actually *published* or made available the original GPL'd work prior to starting at the Uni. TFA does not directly state if the OP published the original work.
If the OP had not published the original work under the GPL, combined with any applicable employment contracts (including the "Employee Handbook" equivalent), then the university can make a case stating that the copyright belongs to them and they have full rights to determine the license. That is where lawyers and documentation get involved, and the case usually goes to he who has the highest paid legal team.
If the OP published the original work under the GPL on an accessible site, then project creation dates, contracts, et cetera can be subpoenaed by the OP's attorney if the case goes to court, showing a full chain of ownership where the OP licensed the software to the Uni under the terms of the employment contract. However, the employment contact may include an "exclusivity clause" stating that any software licensing of preexisting works is made exclusively to the university, or, if unable to be made exclusive, cannot be incorporated into custom software created for and on behalf of the university. If there is an "exclusivity clause", then the OP may be in a whole heap of legal fecal matter that is on a collision course with the mass airflow device.
Disclaimer : IANAL - Always follow up any information on the internet with a licensed attorney in your jurisdiction.
This sort of question is exactly what the Software Freedom Law Center is for.
Just keep swimming.
Why can't that employee use the GPL to demand the source code to that supposedly "internal only" executable? Then, why can't that employee say "The GPL prohibits adding more-restrictive terms to the executable than the terms of the GPLed libraries." and then say "Prohibiting me from distributing this now-GPLed executabile and its source code worldwide is itself an additional restriction that neither the author nor the university can impose on me." And then convey/propagate/distribute the executable and its source code worldwide. The bits & information want to be free.
If you don't do it that way, then suddenly _anybody_ in the world has the right to request source code from you.
Sorry, that does not make any sense to me. How do you come to that idea?
angel'o'sphere
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
IANAL, but my guess is that if it's in your contract
From the original post:
And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project.
The software in question began as a hobby project by a graduate student "on his own". It was based upon GPLed libraries of code by others (who have their own copyrights on that code) as well as code he developed prior to his employment (on which he holds the copyright).
Though any code this person developed under the employ of the university (ie. on their dime) is most likely under the copyright of said employer there was no agreement to transfer copyright of any PRE-EXISTING code and the employer cannot limit the original copyright holder's distribution rights.
HOWEVER, any derivative work done on the employer's dime WOULD have the employer's copyright attached. So, although the university has NO right to block the distribution of the ORIGINAL code or the unmodified libraries on which it is based it CAN prevent the derivative work from being distributed. The university should be aware that by employing this student and using his GPLed code as the basis for the derivative work they've agreed to the terms of the GPL. Those terms give the university full rights to restrict or permit distribution as they see fit. BUT because they are bounded by the terms of GPL if the university decided to sell or otherwise distribute this product to anyone else THEY MUST DO SO UNDER THE SAME GPL TERMS. This means full disclosure of source code to those that receive the software plus the rights to redistribute under GPL terms. If they make binary-only copies or place furher restriction that is copyright violation and software piracy no different than downloading a cracked Windows 7 torrent.
The path of least legal resistance would be to capitulate and let the university have what they have, but to release the code as it existed before the term of employment started as a project on sorceforge or google code or wherever as the basis of a "community development" fork. Because no transfer of copyright agreement was signed the employer would have no recourse, however if you want the added functionality of the later product it would have to be re-implemented in a meaningfully different way.
If you have the time and money or a generous lawyer friend (right there next to your hen's tooth lol) then it might help to remind the those employers who are resistant to the isea of the terms of the GPL, just in case their reasoning behind blocking distribution is because they want to commercialise the software itself. However, they might have legitimate reasons to keep the software to themselves. For example, the nature of the software's functionality might betray a proprietary business or technological process, or some other "trade secret". GPL is there to protect the freedom of software, not to thumb the nose of all IP law and ruin business plans.
Did he modify the libraries he's using? Is he sure it's actually GPL and not LGPL or even MIT or BSD? And in particular that there isn't a reasonable linking exception? My impression from the summary is that he's merely linking said FOSS libraries, and my (much less founded) impression from casual observation is that using FOSS libraries is usually ok so long as any modifications made to the libraries and redistributed are done so following any viral licenses that might apply.
But the question here is whether they can claim copyright on the code he wrote before he was working for them. I think the answer is no; I have a friend who successfully claimed personal ownership of patents that a university wanted dibs on for similar reasons. In that case, the code he wrote while employed by them is owned by them, but can't be distributed (probably even internally -- you are making copies, after all) without putting it under the GPL, unless they hire someone to re-write all the code they don't own.
But of course, the correct answer is always, "Consult a lawyer".
TCP: Why the Internet is full of SYN.
I think it also depends on whether he was originally developing it on his own time or as coursework.
If it's not screamingly obvious, Google run their own Linux kernel, which probably contains more secret sauce than anything else they've written.
Matthew @ Bytemark Hosting
If I read this right, you started the project on your own. When the university found it they brought you on to develop it.
If you had already released it via GPL then, to my understanding, it was a pre-existing work product and they can not claim ownership of it. Already being GPL'ed it should have been understood that the work being done would not violate the existing licensing.
IANAL but I do know that a company can not hire you then claim ownership of work you did before you were hired.
That may not be on purpose.
-mkb
If it's based on GPL code and they don't want to release the whole thing under the GPL, they'll need to rewrite the sections under the GPL before they can have their way with it.
I do want to point out the key to your entire statement there. The key word is, "release." If they want to use the effort for internal consumption, they are free to do so and are not required to every make the code publicly available. But, assuming the code is GPL'd, if they are publicly releasing binaries, they are legally obligated to provide the source.
If you work in a country which has signed the international copyright agreement - the copyright belongs to creator and can only transferred by an explicit contract, implicit doesn't work. Especially photographers have won many cases in court - why anyone even tries anymore is beyond me!
One common mistake here is mixing copyright, license, ownership, etc. Think about a painting made by order - it's almost impossible to move the copyright but, of course, whoever ordered it owns the painting. Totally different issue. But don't try to copy it - the artist will come after you very fast! Yes, we have built a complicated world.
Now - QuantumG is right, read the replies. GPL is a distribution license, period! Very nice, very easy to understand license - except if brainwashed by marketing or "free software" sides! As a copyright owner you can select whatever license, change it whenever you want but (in most cases) can't take back old except if there is a contract agreed by both sides (!!) which includes the clause of license revocation.
O.K. So the exception is for non-commercial redistribution under 2(c) if one received it under 2(b).
2(b) is a bugaboo for many commercial interests: they generally don't mind providing source on demand, but prefer to only have to do it to those to whom they have licensed binaries and not all comers as 2(b) allows.
GPL 3 is more liberal and business friendly in this regard.
In Liberty, Rene
No. You read GPL 2 2(b) incorrectly.
If you provide binaries and source, then you are correct.
But, if you provide binaries and an offer of source that offer is transferable. Then, anyone who gets binaries from anyone else can demand source from you.
In Liberty, Rene
yeah, but it would not be unprecedented to release the code under multiple licenses (e.g. MySQL) or change licenses to allow more commercial adaptation (e.g. Ogre).
Also, just because it links to GPL libraries doesn't necessarily require it to be a GPL license, as there are exclusions for source libraries and general purpose tools (gcc, automake, etc). If he was the sole contributor to the GPL codebase, I imagine he would have full control over what license is used and if the university hired him, they might be able to dictate what license it falls under since it is at that point a work for hire. It sounds very dicey.
Not really. Unless there is a transfer of copyrights in writing, the university has zero control over the copyrights of the original works.
They control the copyrights of the derivative works, which are the improvements made after he was hired. He can continue to release his original work under whatever license he wishes to, including licensing it to the university under BSD or closed source licensing, if he CHOOSES.
The school doesn't get his copyrights just for hiring him unless that was in writing.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
It's not really a gray area. Under the Berne Convention(of which the US is a signatory), things are automatically copyrighted upon creation, published or not.
If the source code had copyright notices in them stating the GPL is the license under which the code may be copied, then that is the way it is.
Absense a copyright notice, the university is ipso facto violating the law by copying the source or creating derivatives at all. No copyright notice, under Berne Convention rules means "all rights reserved", meaning no copying or distribution at all.
It's how the GPL works. If you choose to not accept the terms of the GPL, you can still use the software but you can't redistribute it since you have no other rights by law.
I'm aware of university terms of employment and various state laws in many places will protect an employee from something like this. The employer typically does not get carte blanche rights to all copyrighted works created by someone simply for hiring them. There must be a arms length meeting of the minds for the employment contract to be valid.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
Up until the point where you got hired the work was entirely yours.
At the moment they picked you up, your contributions became work for hire and they became a secondary contributor with you as their agent.
The code is jointly owned by you and the university.
Them hiring you doesn't trump any of the work you did solo before getting the job.
Just the same though, getting your neck breathed down by a high powered legal department can change things in a hurry. Unless you have solid proof you worked on it before getting hired they will most likely be able to muscle you out of your rights anyway.
True, but a high powered legal department might muscle him out of his rights anyway.
That's not correct. Unless you did the work as a university employee, or someone compensated by the university for doing the work, there is no transfer of copyright or assignment of any rights, just because you were a student at the time.
Actually it depends on the policies, etc. at the University, and yes - there are a number of colleges and universities in the US that take that stance - anything any student creates while a student (not an employee) at the college/university belongs to the college/university and not the student. Now, how well they enforce that, or how legal, etc. it is is a different matter. It also doesn't matter whether its for coursework, employment, or just plain on your own time. And a prudent student would ask before they enroll if they care, or check into it before it mattered. In this case, the poster may very well be out of luck.
BTW, you don't need a written employment contract to require that everything you do as an employee belongs to the company you work for either. Same for students - your enrollment is sufficient to say that you agree with the policy, and therefore give up your rights. Don't like it - enroll elsewhere.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
I think the tricky part is that it was already under GPL before he got hired.
That is a stretch. The copryight in the original code existed before he was hired, and so could not have been a part of a work for hire. To transfer the copyright would have required a written instrument doing so (and the SCO case shows the courts take that clause very seriously indeed). You might find a judge who would agree with this, but I suspect it's quite literally unprecedented.
BTW, you don't need a written employment contract to require that everything you do as an employee belongs to the company you work for either. Same for students - your enrollment is sufficient to say that you agree with the policy, and therefore give up your rights. Don't like it - enroll elsewhere.
It's not the same. By law, when you do work for another company who commissions and pays for the work, if there is not a contract, then 'work for hire' is assumed. The company who paid for and commissioned the work receives the copyright.
If you are a student, then you are not paid for any work. There is no automatic transfer of IP, regardless of someone else's "policy". By law a transfer of copyright can only be made with a signed agreement. There is no such thing as implicit transfer of ownership of copyright exclusive rights, there must be a signed contract.
The code doesn't technically belong to anyone, but the rights to it do.
Just because it CAN be done, doesn't mean it should!
I knew this misconception was going to be the very first post!
If the employer is not distributing the program then they are not violating the copyright. Since the GPL is an exception to copyright that allows you to violate it if you follow certain rules, it is entirely meaningless and without force if you are not violating copyright in the first place.
The employee signed a contract that says the employer owns the copyright on their code. This means they cannot distribute the program without violating their employer's copyright, and probably other parts of the contract. The fact that some of the code is based on GPL is irrelevant, there is nothing the employee can do, except maybe try to convince their employer to release the source code to the program under the GPL.
I don't think there is a judge alive who would honor any submarine copyright-transfer terms of an employment contract, so unless he transferred them to the University with an intent to do so, he still owns the original works up to that first day of employment. The university cannot simply usurp his copyrights on the original works by employing him.
Pre-disclaimer: This is all US Law, based on limited knowledge of facts, and is not legal advice. Consult a lawyer.
No, they don't own any of the original copyright.
This person was hired specifically to do this coding, and as a direct employee, this is one of the simplest cases of work for hire, and no contract terms are needed at all. All his work done in the scope of that employment is the property of the University. Full stop.
Oddly enough, just like you can get hearsay by quoting yourself, you as employee are not the same as you prior to employment.
There are now two owners of copyright to the work. The coder, and the employer.
Coder is perfectly within his rights to take the work as it stood before being hired and forking from there, and distributing that to the world.
He is not within his rights to take the work at any point after that, and distributing it to the world. (Even if the code was GPL licensed in the first place.)
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Yes it would be a GPL violation if they distributed the program without the source code. But they are not distributing it!
You are trying to make the "virus" false analogy. I myself am free to take a GPL program and write all kinds of derivatives on my computer and then delete the whole mess or leave it on that disk forever. You seem to think that I am somehow violating the GPL by not distributing my result.
Is it possible to do two distinct forks simultaneously, if you're the one doing the coding on both forks? Couldn't your employer argue that your contributions to the personal fork are inevitably derived from the code you wrote for their fork? And if you write your fork first, and then soon thereafter write the employer's fork, isn't the employer's fork inevitably derived from your personal fork, since you wrote both?
I think a single person simultaneously (or even with weeks) writing both forks is a bad idea, at least from a legal "who owns this code" standpoint.
Following this suggestion is asking for legal troubles.
It's difficult to separate when you're validly allowed to develop for the open fork, and the employment fork.
However, if you want massive legal bills, this could work exactly the way you're describing it.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Um isn't that really a question for a lawyer? I know here at Slashdot we all consider ourselves lawyers,but the fact remains we are not lol.
Jack of all trades,master of none
It wasn't a suggestion... I was pointing out exactly what you're saying - it's a bad idea. Read my last sentence again.
That's an interesting fine point. You only needto give source code when it's requested ... to people who had it distributed to them, right? So, once you've distributed a program (and code) to another person, you're not obligated to give ME the code? In a way that sounds counterintuitive, but I do like that it basically means you're not obligated to distribute your (derived) program.
Of course if you didn't sign it away, you retain copyright over what existed before you joined.
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
It might be wrong, not applicable in your state, ... so use at your own risk. Contact a lawyer for legal advice.
That's the best advice in your entire post. The rest of it... not so much.
While I understand the idea of copyrights not being bogus.
There is a legal framework, which we are dealing with.
That legal framework describes ownership of interests to distribute a work.
Actually, there are numerous incorporeal/non-physical interests that can be transfered and traded, and IP rights are not the only ones.
Real property oddly enough functionally amounts to a set of interests and rights rather than the actual property itself.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
The code will be considered a "work for hire"
If he was hired to continue work on an open source project it's a totally different context than a random hire creating a new work while on the job.
Not that they don't own the copyright to the work, just that under the implicit terms of employment he'd contribute that work under the GPL and merge it with the master project.
They could decide to stop contributing at any time but it'd be a change in the terms of his employment and he could quit.
*facepalm*
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
The employer can only claim copyright over the portion of the work that was created under their employ. However, the sticky bit is that they licensed the original work under the GPL, so they must not distribute their additional code and, if they do, they must make it available under the GPL AND share copyright on the code with the original author.
Yes, and perhaps another way of putting it is like this. The contract between the employer and employee can obligate the employee to transfer his rights. But in such a transfer the employer can't receive wider rights than the employee had in the first place before he handed them over.
-wb-
I think the tricky part is that it was already under GPL before he got hired.
Well, it's very complicated. To the best of my understanding, if the libraries were GPL and he distributed his original project (before his work with the Uni), the project as a whole must be GPL-licensed.
To the best of my knowledge, the GPL itself does not affect the fact that you own the copyright on code that you wrote- it's just that if you want to distribute it integrated with GPLed code, you must make your own code available under the GPL.
Since releasing one's work under the GPL doesn't preclude you from releasing it under other licenses (in addition to the GPL), I would assume it might be theoretically possible to take the code that *he* wrote, remove others' GPLed libraries, link against non-free/non-GPL libraries and release *that* under a non-GPL license.
No big deal, as his original code is still- and will always be- available under GPL, but as copyright owner of the parts he wrote, he could use them as the basis of a non-GPL proprietary fork. (He doesn't require his own permission to distribute his own work, and so doesn't have to follow the GPL to redistribute it if it's shorn of GPL-only code by others).
Now, it gets complicated if one considers whether the university's still using the GPL libraries, whether they "distributed" it at any point, etc. etc.
There are two distinct issues- whether the code is (and can only be) GPL, and who owns the copyright on the guy's own stuff.
As I said, if this had been an issue, he should have considered that before.
This is intellectually interesting, but I wouldn't remotely suggest someone use my- or your- post as legal advice.
In short, one should not use an Ask Slashdot for legal advice!
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
No, but he should get modded redundant because someone posts almost exactly the same thing in every thread. Not just law, but everything. "Slashdotter's aren't military experts/doctors/CPU designers/etc, so shutup and stop speculating."
Well yeah, wow. Thanks. We'd so totally have gone out and bought swamp land on account of this thread if not for St. Dogtanian reminding us that we aren't lawyers.
You're playing a cliched part too, there are always a few hangers-on who congratulate them on such a hard truth/worthwhile commentary/slashdot heresy/... without realizing it's just as recycled, trite, and ultimately wrong as what they rail against - while you may not be anything special, many commenters here are - lawyers, doctors, soldiers, etc.
And thanks mom, but we know not to believe everything we read.
I'd like to take you up on the offer to purchase crack cocaine at discount prices.
I mean, that is what you were alluding to when you said that they employer could potentially lay copyright claim to [...] even the code he wrote before employment started, right?
Because there's no way asking someone to write version 2 implies you'd get ownership of version 1.
Did you miss the "They can do what they want internally" part of my post? Nobody said they couldn't do what they want as long as it is NOT distributed because that is when the GPL kicks in. What I DID say was I kinda doubt the GPL has a loophole that big, otherwise any corp could just hire the author of an original GPL work, have him write and add-on for it, and then claim copyright over the whole thing as a "work for hire" and make the GPL no different than BSD.
So sure, if all they are claiming is the work for hire he did internally? yeah, who cares. But from the sounds of TFA they are trying to claim THE WHOLE THING, which if it was previously released as GPL would be a big no no, otherwise the GPL isn't worth the paper its printed on.
ACs don't waste your time replying, your posts are never seen by me.
I doubt many people *would* come to Slashdot for medical advice, and if they did they'd be rightly sceptical about it. And no-one's going to do an operation based on what they read here.
Nor is anyone going to invade a small country based on what they read on Slashdot, nor Intel mistakenly use our ignorance as the basis for their next CPU family.
But plenty of people *will* use half-baked legal advice as the basis of how they proceed with things that could come back and bite them on the backside badly later on. And for some reason, Slashdotters feel qualified to give out legal advice with an air of authority that they wouldn't (and couldn't) with medical advice.
So it's the fact that legal advice given here is taken more seriously than it warrants, and that the people giving it (probably) genuinely believe that they know what they're talking about.
Perhaps you know not to believe everything you read, but the general vibe I get is that those taking part in these discussions think they're doing so with the same level of expertise and authority that they can (usually rightly) apply to IT subjects.
Contrary to what you say, aside from the odd "IANAL", there is relatively little acknowledgement of what I said in discussions like this.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
Why do employers pull this crap of "everything you create I own."
There's usually a little agreement they try to make you sign that gives them the right to do this. Now I don't do GPL, but my software is not exclusively owned by my customers either. So I just cross that thing right out on the page and tell them:
"I'm sorry, I cannot agree to this portion -- it would be impossible for me to abide by this agreement because I already have a large library of well-written and tested software functions and routines and algorithms that I use and share across projects outside of your business that my other previous customers have already paid for the right to use. And I am not going to sit in a chair and re-invent a SSN checking algorithm or a phone number validator simply because you want exclusive rights to it when the work has already been done, and been done better (I'm totally not interested in re-inventing wheels). But also in return you will someday get the benefit of something someone else previously paid for as well. So you see, I cannot possibly give you EXCLUSIVE rights to my work because they already don't exist. Now, I will be happy to provide you a license and/or right to use/sell the software I create, but this is simply the best I can offer."
They usually just initial the section I cross out and go with it. It's not worth a fight for them, and I won't take a job that would force me to do that. And I suggest you shouldn't either.
"They said I probly shouldn't fly with just one eye," "I am Bender. Please insert girder."
Actually, where the gray area becomes is how much capital the OP has to defend his copyright versus how much the university wishes to take it from him. I have personally witnessed where a company tried to steal the copyright from an employee because they published their work after starting, even though the employee started working on the project prior to joining the company. It became a very hairy mess because the burden of proof was then on the employee to prove that they started the project prior to joining the company. I never did hear how that turned out, as I left the company prior to the issue being resolved (and definitely because of that issue).
I was also on the receiving end of similar treatment with a different organization; however that company's lawyers backed away very quickly. I published the project, including source code and binaries, on SourceForge several years before starting with the company. Thus the chain of ownership was very clear about that project.
But, again, I am not a lawyer. This is just my personal experience with corporate corruption, and I presume that it extends to universities as well, since they are also trying to make a profit.
Since this is way down at the end you'll never see this advice.
Sit down with your boss and talk it out. If your boss doesn't understand the GPL, explain it to him. Explain that if the University plans to distribute this as non-free software, you will need to reimplement a significant portion of the code. Give him an estimate of the time you would need to do it. If they are selling it, make sure you are on the author list registered with the University intellectual property office.
If he doesn't plan to distribute it, ask why not. Are their trade secrets in the code? How much time would it take to remove them? Who paid for this code? Do they require open distribution?
If you were hired because of your work on these libraries, your employer should have understood the licensing issues in using them in advance. Also let them know you were never told to avoid GPL libraries in your development efforts.
Final effort, if you can't reach an agreement, and your employment has ended, contact the University's legal department and tell them that you are worried that you boss will be illegally distributing this software. They aren't going to take your side, and they aren't going to give you GPL distribution. But they will make sure that your boss doesn't distribute this software.
Support SETI@home
You are right, I missed the part that some of the work was done before being employed by the company. I was under the impression that he was employed, took some GPL code, and wrote an appliation for internal use, and somehow thought that having used GPL code somehow overrode his employee's ownership of the resulting copyright.
This is hardly GPL specific. If the author gave or sold the copyrights to their previous version to anybody else in any way, the company could not somehow rescind those rights from those others.
Huh? What university are you talking about?
The computer I'm typing this on belongs to the university, and although I bring my laptop to work and occasionally do work on it as well, I may be the only one in my department that does so. Pretty much everybody here uses a university owned computer, exclusively. It's the same in all the departments on campus where I know anyone, so I'm going to generalize that to mean most all employees here. I can't believe we're very unusual.
Ignorance killed the cat. Curiosity was framed.
Eh, this whole conversation really begins and ends with, "Not enough information".
What parts did you do before they hired you. Did you release that under GPL? Obviously the stuff you did for them belongs to them, but there may be limitations on their ability to distribute it. Is it worth creating another example of "poisoning" code with the GPL virus? It may well be spun that way.
Maybe your code just isn't worth a black eye or even the cost of a court battle? Too little info all around.
Because from the legal definition of "distribute", if the University owns the computer that the software is on, they haven't distributed it. So, the employee has no legal basis for demanding the source code.
The truth is that all men having power ought to be mistrusted. James Madison
They own the part you did after. However, they cannot distribute the combined work without your permission. If the program includes any GPL code written by anyone else they cannot distribute the program without either complying with the GPL or getting the author's permission. If the program links to any GPL libraries (not LGPL) they cannot distribute it without complying with the GPL.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
That's only if the code in question is contributed to by other sources then the employee.
You see, where the break down in this is even though it's GPL'd, the owner of the copyright can license the code in ways inconsistent with the GPL. This is typically known as a dual license.
I guess the real question here is if the implicit request of the code and continuation of the project, would that require a separate license for the GPLed code given that the author of the code is the employee and he took gainful employment based on that previous code itself. As an employer, one could easily make the argument that was implied with the hiring because his position and salary was based off access to the code and his continued work on the code for hire.
If others owned the code, it couldn't be that simple because you can only assign rights to code you own. But seeing how it's implied that he was the author to date and the potential problems cropped up after asking for outside help, then it's reasonable to assume it was all his code. He may be forced to apply a separate license then the GPL to allow his work for hire code to be functional and all the GPL code that would apply is the code before the hire.
The school could get an implicit license by the nature of the employment. That is if he owned all the OSS code he was hired to work on and develop.
You see, if I hire you to do something because you have X experience and I'm expecting to keep the fruits of your experience, then you need to license the amount of experience to me in order to retain the value of your contributions. So simply hiring him may have been enough to imply a license other then the GPL in order to retain the value and usage of the work for hire code if "his" code is in fact all "his" copyright (outside of the GPLed libraries).
So yes, while they may not get his copyright, they make get a license to the work that allows it to be used outside of the GPL. If that is the case, then whoever owns the libraries will need to pursue the GPL violations if it doesn't fall into one of the exceptions.
Why can't that employee use the GPL to demand the source code to that supposedly "internal only" executable? Then, why can't that employee say "The GPL prohibits adding more-restrictive terms to the executable than the terms of the GPLed libraries." and then say "Prohibiting me from distributing this now-GPLed executabile and its source code worldwide is itself an additional restriction that neither the author nor the university can impose on me." And then convey/propagate/distribute the executable and its source code worldwide. The bits & information want to be free.
If your company provides you with a copy of Microsoft Word for you to use, you have no rights to that copy. Just try quitting your job and demanding that you can take that copy of Microsoft Word with you. If your company provides you with a copy of some GPL'd software for you to use, you have no rights to that copy either.
Should you take it on yourself to distribute the software then you are in deep shit. The GPL puts requirements on people making copies. The company didn't make copies, so there are no requirements on them. You made the copies, so you have to provide people with the source code, but you can't - the source code isn't yours, and your company will likely not be sympathetic with your cause.
The implied license doctrine would have been more applicable to SCO than to this scenario with the university. At least in SCO's case they could have lied through their teeth claiming they thought they were buying the copyrights too. Oh wait, they actually tried that and it didn't work.
I just don't see the implied license doctrine working out for the university. The discussions leading up to his hiring would have really defined what the universities intent was when they hired him. If there were discussions about the university not just modifying, but also distributing the derivative software, then an implied license may exist. It's pretty slim that a judge would find that his direct employment creates an implied license of distribution rights for software he created before his employment.
Good idea though. You're thinking creatively. Darl is that you?
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
relatively little acknowledgement of what I said in discussions like this.
How many posts do you want, in every thread, acknowledging our own frail mortal limits before we're properly humbled?
I doubt many people *would* come to Slashdot for medical advice, and if they did they'd be rightly sceptical about it. And no-one's going to do an operation based on what they read here.
I'm pretty sure I've seen threads on laser eye surgery. Cancer/chemo, I think... Certainly health and nutrition.
Nor is anyone going to invade a small country based on what they read on Slashdot
"We" invaded Iraq/etc, I don't intend to sign-up myself, but I would like to know as much as possible to make the best decisions here. It's not flashy like "the law" but it's life and death.
So it's the fact that legal advice given here is taken more seriously than it warrants
Medical people find medical shows worse (for TV crap) than other shows, you probably bitch at CSI.
I don't think there's much difference in the help you get here on Slashdot for tech or legal. You wouldn't "take" advice you got here, you'd look it up and use it as the basis for study or to aid in consulting experts. It's like Wikipedia, a good first reference, and likely right if it sounds consistent, but with no guarantees that you aren't missing something.
I don't think I'd learn architecture here but if my company were building an office I'd post an Ask Slashdot on what things a tech company doing XYZ needs to get in a new building, what things to look out for, etc.
and that the people giving it (probably) genuinely believe that they know what they're talking about.
Yeah, Homeopaths and chiropractors (seemingly) honestly believe their craziness.
So? Just that it's harder to distinguish from true that way? Only if you think that someone believing something makes it true... I find it's usually easier because they'll indicate the circular nature of their proof (not understanding this is a weakness in it) and thus be easier to dismiss than a skilled liar.
the general vibe I get is that those taking part in these discussions think they're doing so with the same level of expertise and authority that they can (usually rightly) apply to IT subjects.
Yeah, we can. In any area other than *exactly* mine I have to listen to other people until I check things myself. Some things aren't documented in books precisely enough to answer a layman's question and I need to ask about them, other things are documented well, supported in other works, referenced in still others, etc. You follow?
I know nothing about what you'd do to pursue a copyright claim from start to finish, and I don't expect Slashdot to help here - it'd be asking people to come up with an exhaustive list of things I need to do, not just point out likely things I missed. So I'd consult/hire a pro - with maybe a look through previous Ask Slashdots for tips on finding tech-savvy lawyers...
Where my Slashdot legal degree would come in handy is kicking the pro's tires. For instance, I know the difference between a EULA and the GPL, if they don't, they don't know the area. Not that I wouldn't listen, but if they make and insist on newb misunderstanding of the issue...
IANAL, but the Affero GPL might offer interesting solutions to this issue. It could be interesting to build on software available under the Affero GPL and run the software you're developing as a service from the beginning. That way a third party might have the right to get a copy of the software and the source code, or not, IANAL.
That is a stretch. The copryight in the original code existed before he was hired, and so could not have been a part of a work for hire.
Basically: the derived work is not the same as the original work, the owner of the original work authorized the creation of a derivative, and the owner conveyed all his rights to the derived work through the employment situation. Rights to the derived work include rights to the original work, which are transferred, in the context of the derived work.
It was a specially commissioned work: (1) they paid him to provide modified code.
(2) The entire codebase was within the scope of his normal work for this employer.
(3) He performed the work commissioned, and received payment.
Therefore, we conclude that: (1) It was a work for hire; his derived work was a work for hire.
And, because it was a work for hire, any copyright to the derived work from authorship is conveyed to the employer.
The fact this work was derived from another work, and he may still own the copyright to the original work it was derived from;
Does not necessarily mean he owns any copyright the derived work, even if it happens to contain the original work.
Ownership of the derived work could have been entirely conferred, due to its work for hire status.
This would be sufficient for the university to do as they please with it in terms of exercising the rights any business would reasonably expect to exercise, in regards to the use of a work they commissioned.
He implicitly gave himself permission to create this derived work under the terms of employment, so he cannot make any claim of copyright infringement against himself for having created the derived work.
And the ownership of the derived work being conferred based on 'work for hire' status, he cannot rightly claim infringement against the university, for any action taken with the derived work due to this situation where ownership of the derived work is assigned due to the 'work for hire' situation...
1) the employer cannot deny the coder actually wrote that code (up-front attribution is not required, on-demand confirmation is required
The Employer can say "I have no comment to make on that matter." And refuse to provide a yes or no answer, as to whether the coder wrote that code, without recourse by the employee.
Incorrect. It's not employment law that comes in here, it's Copyright Law. Basically, it irrevocably grants something called "moral rights" on works to the original author, no matter who the copyright itself is vested in. One of those rights is the right to be identified as the author of the work. Refusing to recognise the creator as the author of the work is a violation of Copyright Law.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
Or they can choose not to release it and just use it internally. Nothing in the GPL forces you to release your derived work - only if you do, it must be compatibly licensed.
Lets not forget that this is about a license not the copyright itself.
In the sco case, they actually attempted to assert ownership of the copyright itself, not that they had a license to suit their needs. I don't think the university would claims complete control, rather that they had a license that didn't remove their own control. In other words, the guy would have cross or dual licenses the software by the association leading to a work for hire. I can see the argument being made and working.
Well, Here is the problem. the discussions didn't pertain to anything surrounding the license. The university can claim and assumption that they would have a license and the guy would have to claim nothing gave them that assumption. It would boil down to the lawyers presenting the case and who is the most believable concerning who knew what, expected what, and when.
And here is the backing that would allow a judge to assume the license existed to distribute. If you clearly rent something, you know you will have to give it back. The condition of employment wasn't to rent part of the software and own only what was built from it, the condition was to hire the guy to bring this software to the department and build on it. Now where would the department get a right to build on the preexisting software? From the author, who did they hire, the author and copyright holder. Did they set terms that they only wanted to use it internally? No, not that the article mentions, so it's reasonable to believe that the employment compensation was for both rights to the software and improvements built on the software while in employ of the department. Otherwise, the improvements wouldn't be as valuable. This especially becomes the case if the employment was under the impression that the software was originally developed for a class in which they would already have a license according to the terms set forth for enrolement.
Now I can't say for sure if this university has that policy, but they often so and that could lead to a license being implied regardless of what the intent is.
I'm glad you're keeping your humor in this. However, it's not as funny as you might think considering some of the more recent court decisions that seem to defy common sense. I learned a long time ago, about any lawyer can construe about any situation any way they like. There is enough legal precedent behind this to allow an implicit license to win here. I guess the first thing the guy should do beside seeking competent legal counsel, is sit down with the employer to make sure they know what they got when he came on board and see if that differs from what they think they got.
Well, the New Zealand government believes it is one giant entity, so passing OSS software between departments does not amount to distribution - even if passing from the Ministry of Defense to the Ministry of Transport. Of course, they also state that there may be obligations if an OIA request is received relating to the software.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
What about software that provides a web interface ? Is that distribution ? In today's fad of SAAS and SAP, the lines are very blurry.
No. That's why the AGPL exists.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
I'm pretty sure that "having access" is not the same as "distributed to". If it is used internally in any organization, the IT dept. would "have access", for instance. The GPL only covers distribution, and if they are only using it within the organization (even if in different buildings or cities) then the GPL never comes into effect.
Best example is Google, who has many data centers, thousands of tech's who have access, running GPL code on tens of thousands of boxen. They never have to release kernel modifications at those locations because they aren't "distributing" the code, just using it within their own organization, in many different locations. They are NOT "distributing" it to those locations or anyone else, so the GPL never comes into play.
And the organization CAN make it a requirement that you never release any code that you are being paid to produce, even if it is for a program under the GPL. You don't own the code you produce for pay, the company does. Even if you own the original code, you don't own the changes (unless contract says otherwise) so you wouldn't have the authority or ownership to release any changes to the original base code, and technically, those changes are NOT forced to be licensed under the GPL until you distribute them. If you never distribute them, and then replace all previous GPL code with proprietary code, then it can be distributed under any license you wish, even though you developed it (but didn't distribute it) using GPL code.
The GPL doesn't restrict USAGE, only distribution. As to usage, it says you don't need a license to use it unrestricted, and this includes using it as a base for other programs under a different license as long as you remove the GPL portions before distributing.
Tequila: It's not just for breakfast anymore!
This varies from state to state.
In california it's a use of common sense.
If you do it on your own time and and on your own equipment, AND it is not something that could be considered your principle line of work for the company, then you are clear by law (though they can still take you to court and make your life miserable).
BUT if any of the above are not true, they may have some partial or complete interest in your work.
IF you work developing game code and develop a game engine, then they might have claim to that,
but if you develop database code or compilers, then more likely not.
Not all states have their head screwed on str8 in this regard.
In some states, contracts to prohibit re-employment in the same field (so you don't take company secrets to a competitor) after you leave for a year or more are legal, but not in California. California realizes that in our economy, you walk out one door and into another at the drop of a hat. That DOESN'T mean that taking of previous company secrets is ok -- just that it will be presumed that you will keep your prior employers secrets, secret.
In short...you'll have to check your state laws.
I think the point moreso stands that the GPL says that if you are unable to fulfill this license, you can't use the accompanies software in the first place. So it's not "What do I do in this pickel between my employer and the license now?" -- it is "I shouldn't have taken this contract" (or at least fulfilled it in a different way)
GPLv2sect3para0 You may copy ... the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following: [3 ways of making source code available]
Let us reword that quotation: OP's university may copy the Program only if the OP's university enacts one of the GPLv2's 3 ways of accompanying that copy with source code or the offer to obtain the source code. Via the wording of this quotation, no distribution outside of the of the OP's university is needed to trigger this provision. Copying of any kind triggers the source-code obligation.
GPLv3sect6para0 You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways: [5 ways of making source code available]
Let us reword that quotation: OP's university may convey the Program only if the OP's university enacts one of the GPLv2's 3 ways of accompanying that copy with source code or the offer to obtain the source code. Via the wording of this quotation, no distribution outside of the of the OP's university is needed to trigger this provision. Conveying of any kind triggers the source-code obligation.
He'll have to prove that his work was done before his employment
This is why my private projects always start with a visit to the "Create a new project page" on SourceForge. That way no one can take them away from me.
And this question is governed by the work made for hire doctrine (http://en.wikipedia.org/wiki/Work_for_hire). Ownership depends on whether you are an employee or an independent contractor. Which of these two you are depends on separate analysis. If you are an employee then the boss owns the lot. However, if you can prove that you are an independent contractor, then the code belongs to you because it is not in the 9 statutorily-defined categories in Section 101 of the Copyright Act. Interesting question. -- Noah Note: I am not an attorney and the preceding comment is NOT intended as legal advice.
That would depend on the employment contract. Until I had corporate legal amend my contract, anything copyrightable I did, between the moment of signing the contract and resigning my job, would've been the property of the company, if they wanted. With the amendment, only things done on company equipment or company time falls within the scope of being the company's.
Any work done before he worked for them is his copyright and he could release that but any work done after his hire is theirs and as long as they keep it in house, there is no violation.
This varies very much from country to country. In many European countries the work you do outside work is your own. In the US that should also be true, but your employer is allowed to create contracts which take away everything you should own. So, the summary doesn't give us enough information. You need to know a) where exactly this is happening b) what contracts were in place c) what exactly the guy did; what discussions he had and exactly what comments are in the code. Generally he shouldn't post that information since his posting would be discoverable in any lawsuit. He should discuss everything with his lawyer since, in civilised countries, that kind of discussion protects any speculative things he may say that might be harmful to him from being available to his opponents.
Not in the UK I had a discusion with some one who is now high up in BT's HR dept (on the legal side). And he said in the UK work you do outside of work that is related to your day job - does belong to the employer.
It will depends where your countries employment laws derive from with the USA and the UK sharing common roots aka the master and servant act
Define "distribute". They have a piece of software that they run somewhere? So it's not distributed if it used within the University? What if they have multiple campuses? I never understood the definition of distribute as it applies to GPL.
GPLv3 says: "To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well."
GPLv2 doesn't explain it explicitly as far as I saw right now.
I would say distribution happens when two legal parties are involved (two people or two organizations). Computers don't really count (unless you e.g. deploy to a different organization, then implicitly another party is involved).
NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
I think you are missing the part where he developed this code BEFORE working there. It isn't a work for hire unless he was hired before he wrote it.
His employer doesn't get his preexisting copyright for free because they hire him to do work for hire on the project after the fact.
Actually, work for hire or no, there is a strong argument that everything he did for them is a derivative work and therefore falls under his pre-existing copyright.
Just because they hired the original author doesn't mean they get a license to use the work he owns for free and it certainly doesn't mean they get to take his copyright.
"If the OP had not published the original work under the GPL, combined with any applicable employment contracts (including the "Employee Handbook" equivalent), then the university can make a case stating that the copyright belongs to them and they have full rights to determine the license. That is where lawyers and documentation get involved, and the case usually goes to he who has the highest paid legal team."
If the OP did not publish, he still gained copyright at the point of creation. So if he didn't publish under the GPL and did not sign a contract granting the university the right to use the work in the first place then they don't even have the right to use the work internally let alone to usurp his copyright.
Have to disagree - I've been exactly there - though I'm in Canada. I would expect the legality to be very similar where you are though, so this may be worth looking into. I think what others may be overlooking is the fact that this was done for a university. With respect to the creator of the work, educational institutions generally do not have, and should not try to enforce IP ownership in the same ways that private companies do. In this case the employer does own rights on the work since they paid you for it, but as the originator you also retain rights to it. Search your university's charters for the term 'sponsored research'. I would say that either you or the university could redistribute the work, but that it would have to be done under the terms of the GPL. Within that framework you could even profit from the work provided that you do it transparently and in good faith - which means informing the other party of your actions.
He is also perfectly within his rights to sue the university for developing and using a derivative in the first place if he never granted them a license.
Ah, I see, you're arguing that the employer owns the entirety of the derived work, including those sections of the original work included within it, but the original author still has a (separate) copyright to the original work. Yeah, I can see them making that argument, but I think it conflicts with 17 USC 103(b), which states
The authors are not the same. The author of a work for hire is the employer (17 USC 201(b)). Therefore the original author still has the copyright on that portion of the derived work he created prior to his employment. Which means that unless he granted his employer license to distribute that work outside the confines of the GPL, they have no such license. Of course you could probably tie the case up for years arguing that he implicitly granted such a license.
I think you meant GPL2 3(b), but I stand corrected. You have to make a written offer valid for 3 years from the date of your original distribution. I am not sure how this would be enforced if the first party is the original author, as the only person who can legally force the first party to comply is the copyright owner, (such as in this current discussion). I'm not even sure how you could prove the date of the original distribution (1st party to 2nd party), making this a difficult provision to enforce. It can't possibly mean 3 years from the distribution from 2nd party to 3rd party, as that could take place 5 years after the 1st party to 2nd party distribution.
This means that *technically*, the original author can be in violation of his own license, by simply refusing to provide source to a third party.
Tequila: It's not just for breakfast anymore!
Yes, GPL2 3(b).
Clearly if the distributer is the copyright holder, yes, no one other than him can enforce the license, and, as the copyright holder, he can relicense as he wishes. So, the paradox of being in violation of his own license does not apply.
However, where one combines code with GPL2 code, and distributes the combination, one MUST distribute under the terms of GPL2, and the copyright holders of the OTHER parts of the combination can enforce the license on the distributer.
This holds for ALL (re)distributors.
So, if C adds code to GPL2 code copywrighten by A and B, and distributes the result on Jan 1, 2010, he must include an offer good to Dec 31., 2012 to provide source to all comers who show they have binaries and a copy of C's offer. This is because GPL2 requires C's offer to be transferrable.
Now, if D further redistributes binaries received from C, he must either (a) provide source (which he got by holding C to his offer), or (b) provide his own offer good for three years from when D distributed (and this is true for every time D distributes), or (c) transfer C's offer (and only if D's distribution is non-commercial).
I agree that if the offer does not specify an expiration date, determining what it is requires determining when the distribution occurred. While a small burden, it is not impossible to demonstrate by a preponderance of the evidence.
This can actually be a pain in some cases where commercial interests want to distribute code licensed necessarily under the GPL, but have not yet developed the means to neatly package source and a convenient build mechanism. The classic example is a firm distributing GPL works in progress to contractors.
I asked RMS about that situation, and his position was that if the contractors were using their own computers and not computers provided by the firm that hired them, it was considered distribution. Neither of us is a lawyer, but I think that position is correct.
I've also been in positions where recipients of GPL code did not want source and we did not want to provide an offer (to comply with the GPL) because we did not like the transferability provisions. In the end we shipped them a CD and offered to pay return shipping for them to send it back to us at their discretion.
In Liberty, Rene
Ask them nicely if you can have a copy of the software for personal use, get it in writing. If they give it to you then they have distributed and assuming that the GPL would apply to that code if distributed then you can do what you like with it.
BTW, you don't need a written employment contract to require that everything you do as an employee belongs to the company you work for either. Same for students - your enrollment is sufficient to say that you agree with the policy, and therefore give up your rights. Don't like it - enroll elsewhere.
It's not the same. By law, when you do work for another company who commissions and pays for the work, if there is not a contract, then 'work for hire' is assumed. The company who paid for and commissioned the work receives the copyright.
If you are a student, then you are not paid for any work. There is no automatic transfer of IP, regardless of someone else's "policy". By law a transfer of copyright can only be made with a signed agreement. There is no such thing as implicit transfer of ownership of copyright exclusive rights, there must be a signed contract.
While IANAL (and I doubt you are either), that won't stop a University/College. You enroll in the school, and they'll argue that that is sufficient - and it probably is. You agree to their policy, just like you agree to the work policy.
And, btw, there is no payment required. Otherwise unpaid interns and volunteers would keep their copyrights, etc. when they do work that is *uncommissioned and unpaid* for any entity (commercial or otherwise).
And again, they'll simply come back with the statement of "don't like it, go to school elsewhere, your enrollment in the school is agreement to the policy to transfer the work to the school", and it'll _likely_ be upheld in court.
It's akin to an employer changing the policy and saying "if you don't like the policy, then you are free to seek employment elsewhere", regardless of how legal/etc. the policy may be.
The college/university may be relying on students not being able to fight it in court, but that doesn't change what is happening now.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
BTW, as far as the gov't is concerned you are employed as a Student at the school. So enrollment at the school is probably sufficient for the school to claim that (even though you are paying them) it is the equivalent of a work for hire relationship.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
Thanks for the detail info, that is one of the nuances of the GPL that isn't obvious at first glance. I still have one problem that you are free to ignore if it doesn't interest you, but the issue seems real, even if unlikely. Here is the oversimplification to be perfectly clear in my meaning:
Bill writes a program and gives only Alice the binaries but no source. Bill has included a copy of the GPL license with the binaries and it is obviously GPL licensed. One year later, Alice needs to modify the source, and asks Bill to comply with GPL 2, 3(b) and provide a copy. Bill says he changed his mind about the license and it is now closed source and refuses to give Alice a copy of the source. He offers to sell her a restricted copy for $50,000 instead.
Bill can't relicense the copy he gave to Alice after he has already distributed it, that would be taking away Alice's right to redistribute under her current GPL licensed copy. He can change the license on FUTURE copies that HE distributes only, but he can never "unlicense" a copy that has knowingly and deliberately distributed under the GPL in a retroactive way. (This would be true regardless of the license, even Microsoft only changes the license with click through updates that you can refuse) Alice is metaphorically held hostage if she can't take legal action against Bill for refusing to comply with the GPL. Even though she is not the owner of the copyright, she can show she has been harmed by Bill's refusal to comply with the license of the software she received.
While not a common situation, the more the GPL gets used, particularly on smaller 'for hire' projects, the more likely this situation could occur. Perhaps the program made Alice $1M on her servers, and Bill just wants a cut, the reason doesn't matter. While it is easy to say "always get the source when you get the binaries", it is easy to overlook on a busy project when you hear "I will send it in the mail next week" and you aren't expecting to make changes any time soon.
Academic, perhaps, but troublesome. Thanks.
Tequila: It's not just for breakfast anymore!
I think you are missing something... what happens at work isn't decided by policy, it's defined by Title 17 S201 of the law:
A very important requirement is the work has to have been prepared for them, meaning on their behalf, and intended to be used by them.
And, btw, there is no payment required. Otherwise unpaid interns and volunteers would keep their copyrights, etc. when they do work that is *uncommissioned and unpaid* for any entity (commercial or otherwise).
Well, there is no such thing as an 'unpaid intern'.. the practice of hiring someone but not paying is not legal under the labor laws.
Volunteers might or might not be considered employees for purposes of the copyright act, it depends on the circumstances, CCNV v. Reid 1989. The volunteer is an employee if the organization has the right to control the manner and the means by which the work is created.
Otherwise, the question of the status of copyright work created by volunteers is unsettled, and would be up to the courts to reach a decision.
Work done by a student does not fit in here. Because (a) It is not prepared for the purpose of use by the university, and (b) The student is not an employee, since the university doesn't have a right to determine the conditions time/place under which they created the work, and (c) the student is not an employee legally.
And again, they'll simply come back with the statement of "don't like it, go to school elsewhere, your enrollment in the school is agreement to the policy to transfer the work to the school", and it'll _likely_ be upheld in court.
See, it doesn't matter what the school's policy is, there is no automatic transfer of copyright. This also goes back to Title 17 201 (e):
The college/university may be relying on students not being able to fight it in court, but that doesn't change what is happening now.
If the student does not bother to fight it, then the university wins by default, temporarily, but it's like that with any illegal activity. Eventually someone will stand up for their rights.
How many posts do you want, in every thread, acknowledging our own frail mortal limits before we're properly humbled?
None. Just one stating that "This thread is for entertainment purposes only. Any similarity to actual legal knowledge or insight is purely coincidental". :-)
I don't think there's much difference in the help you get here on Slashdot for tech or legal. You wouldn't "take" advice you got here, you'd look it up and use it as the basis for study
With tech advice, a significant minority here really know what they're talking about, another significant minority are flakey but make this clear, and some talk out of their backsides with authority.
However, since there are a critical mass of people who know what they're talking about, they're frequently called on this.
You wouldn't "take" advice you got here, you'd look it up and use it as the basis for study or to aid in consulting experts. [..] It's like Wikipedia, a good first reference, and likely right if it sounds consistent
That works for tech for the reasons give above.
It doesn't work for legal advice because there are too many people who don't know what they're talking about thinking they do and there are too few people who *do* know what they're talking about, and spotting them among the majority who *don't* is next to impossible.
The most you can do with Slashdot advice is to spot when a legal issue is *totally* clear cut or when it might be a can of worms, but if you know enough to ask the question, you can probably figure out which of those it is.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
Yes, I am aware the Labor Department is looking into that. However, that doesn't mean they are not there. Various Federal Agencies (e.g. the FBI) have unpaid internships (know someone that's been through that!).
It's also quite a common issue in the tech industry, and a few others. While I didn't take it I have had one company try to hire me that way; and for quite a few it is common practice. Not saying it's right, or legal - but it is there. I'm also aware (from when I was in college) that a number of my fellow students had the same issue - too many unpaid internships.
Thus, why the gov't (Labor Department/whoever) is now looking into the practice. But needless to say, unpaid internships DO exist.
While you could probably argue non-class creations (e.g. creating the next Microsoft from your dorm room) fit that, you'd be hard pressed to argue that classwork does not fit that - it's prepared per instruction (conditions of the work - requirements, time line, etc.) per the professor (basically your boss) for the purpose of the educational instituion (to teach you and others something), with deadlines, etc.
BTW, 'student' is a legally recognized employment status.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
That's easy. Bill gave Alice a license which gave her certain rights, including the right to demand source from Bill. She has a cause of action if he refuses under contract law (IF money or other "consideration" changed hands making it a binding contract).
Basically. Bill's rights stem from his copyright, and Alice's rights stem from the license Bill gave her.
Now, because Bill wrote the code all by himself, he is not obliged to license it to Alice under those terms. In fact, he can license it to Alice under restrictive terms, and to others under the GPL, and Alice could not demand he provide her source because her license did not give her that right. Further, she couldn't demand anyone who DID license the code under the GPL give her source either because they did not distribute to her!
Of course, if distribution is widespread, Alice might be able to get a copy of the source eventually, but she has no right to it.
Now, lets say Bill licensed the code to Alice under GPL2 3(b) because he had to in order to distribute to her as a "derived work" of someone else's GPL2 licensed code and no money changed hands. It would be questionable if Alice had a cause of action against Bill for violating the license. But, the copyright holders would have a cause of action against Bill for violating their copyright even if no money changed hands when their code was distributed to Bill, because his right to redistribute derived works was restricted by the license he got.
So, you can't violate a copyright without a license (which does not require consideration), but you can't enforce a license you receive without having paid consideration for it. One can freely give up rights without consideration, but one can not enforce rights gained unless they paid consideration. At least that's as far as my NAL understanding of contract law goes (there being an implied contract when the license is granted in exchange for money or other consideration).
In Liberty, Rene
Oh, Alice having "no right" to source above, means she has no cause of action to demand it. She does have a right to have it if she obtains it through someone other than Bill.
Basically, if I say you can do something, and you do it, you can do so with impunity: I can't change my mind after the fact unless I rescind my permission. But, if I promise you something (future delivery of source on demand under GPL2 3(b)), and you don't pay me consideration, you can't enforce that promise. Others, however, may.
In fact, GPL has specific sanctions for those that do not redistribute according to the terms of the license: their right to future redistribution can be explicitly rescinded. Further, statutory sanctions under copyright violation can also apply.
In Liberty, Rene
That works for tech for the reasons give above. It doesn't work for legal advice because [...]
I think you overestimate the quality of the tech advice on here if you think it's much different.
He is also perfectly within his rights to sue the university for developing and using a derivative in the first place if he never granted them a license.
The likelihood of that actually succeeding is pretty low, considering he was the one actually developing the derivative.
Namely, he gave implicit permission.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Basically they probably can't really do that in theory, but you have to remember the law does not really apply to IBM (their lawyers are too good), this is them being ethical and warning you in advance. You'd probably find that if you forgot something and went to your manager and explained, they would look it over and let you add it to the list later. If, however, it became an issue of conflict, they would assume you were lying and their lawyers would proceed to prove it, no matter what the truth was. So in a way it's really them just looking after you and making sure you have no illusions in the matter.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
GNUv3sect6para0You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways: [5 methods of providing the source code]
Why are you fixated on the word "distribute"? Instead, you should be fixated on the word "convey" as actually used in GPL as quoted above. Legally "conveyance" does not need an underlying "distribution", even though usually "distribution" needs an underlying "conveyance". Please read the GPL itself. But don't take my word. Let's use the GPL's own definition of "convey" and "propagate" to see whether there exists a method of conveyance in which no distribution occurs or whether there exists a method of propagation in which no distribution occurs.
GPLv3sect0para5 To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying , distribution (with or without modification), making available to the public, and in some countries other activities as well.
GPLv3sect0para6 To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.
If the university has copied OP's Program from whereever OP stored the Program to the local hard disk of at least one user's computer and granted that user at least read permission to the Program that "enables" that user, "a third part", "to make ... copies", then by GPLv3sect0para6 the OP's university by an overt act of its own volition has triggered the source-code obligation to that user via mere copying/conveyance to that user's local hard disk without any distribution whatsoever outside the OP's university. That user shall now be in possession of all members of the set {OP's university-paid-for/university-copied binary, OP's university-paid-for source code, OP's pre-employment source code, underlying GPLed libraries' source code}. (Unless that user has consumated a signed side contract with the OP's university outside of the GPL as per GPLv3sect2para1sentenceFinal), under the freedom-rights granted transitively by the chain of copiers via the provisions of the GPL, that user then may now publicly distribute to humankind the OP's binary and OP's source code from which this binary is derived as a derivative work.
Source-code freedoms preserved transitively without distribution performed by OP's university itself or by OP herself. QED. The bits & information want their freedom. IANAL.
You actually quoted the relevant section
GPLv3sect0para6 To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.
The user in your scenario who is using the software on a University computer has not received a copy of the software. The copy of the software is on the University computer.
The truth is that all men having power ought to be mistrusted. James Madison
But what happens if I release a GPL'd library, and your company uses it in their product? Once they have split and distributed the source + binary to the spinoff company, this means a program using my GPL'd library has been distributed. Does that mean I, as the library author, am also entitled to a copy of your source?
GPLv3sect6para0 any any any any kind of propagation that enables enables enables enables other other other parties to make make make make ... copies copies copies copies [obligates the propagator to make the source-code available in one or more of 5 listed ways]
What on earth do you think that "any", "enables", "other parties", and "make copies" mean in my scenario in a prior posting along this thread other than the following: A) If the OP's university were to have installed OP's binary Program on the local hard drive of the computer that the university authorized that user to utilize, and B) if the OP's university were to have granted read permission to OP's binary Program files on the local hard drive of the computer that the university authorized that user to fully utilize, and C) if there were to have not existed a side-agreement contract between the OP's university and that user that would have prohibited that user to make further copies of files on that local hard drive (especially copies that fall outside of the perimeter of the university), then under concomitant A & B & C the OP's university would have made a copy---where that act of copying is permitted only under the terms & provisions of the GPL---for which the university is legally responsible under the law (i.e., meeting the GPL's definition of "propagation"). In this scenario, did the OP's university lock down OP's binary Program out of sight of the user and throw away the key? No, in this scenario the university overtly granted read/copy permission to the files of OP's binary Program on the local hard drive that the university provided to the user.
The university rolled out the royal red carpet to the user to enact the very purpose of the GPL: to get the source code so that the user can maintain the user's own software freedom herself. Let us count the threads in this red carpet. The university funded the development of a GPLed Program. The university continued funding the development of that GPLed Program after being advised of the underlying GPLed libraries that cause the whole binary Program to be GPLed, rather than replace the GPLed libraries with non-GPL analogues. The university provided the user with a separate univerisity-owned computer, rather than merely an account on a time-share minicomputer, which could have permitted the university to avoid making the local-hard-drive copy by utilizing a single shared instance of the binary Program. The university provided that computer with local hard drive, rather than merely a diskless-booted remote filesystem, which likewise could have permitted the university to avoid making the local-hard-drive copy by utilizing a single shared instance of the binary Program. Did the OP's university make a policy prohibiting the use of OP's binary Program punishable by the death penalty? No, the university overtly authorized university personnel to copy the GPLed binary Program onto that hard drive, which can be performed legally only via compliance with
You are absolutely correct to conclude your post with "QED. IANAL", because your reasoning clearly demonstrates that to be the case.
The truth is that all men having power ought to be mistrusted. James Madison