Update on Software Freedom Law Center work

Troy Rollo wine at troy.rollo.name
Sun Apr 2 18:58:26 CDT 2006

On Saturday 01 April 2006 18:43, Jan Zerebecki wrote:
> To enforce the licence one doesn't need any copyright (asignment)
> at the work at all. You just need to be appointed by (one of) the
> copyright holder(s) to enforce it.

This is not generally the case. If you don't own the copyright, you cannot 
enforce it unless: (a) you have been given a contractual right to do so *for 
value* and join the copyright holder as a party to the action; or (b) you are 
an insurer who is enforcing the right for insurance purposes. This is 
something that may vary between jurisdictions, but that is the basic rule in 
common law jurisdictions.

Scott Ritchie:
> Fortunately, in order to enforce the license they don't really need
> rights to all of it, or even most of it - just rights to substantial
> portions of the useful stuff.  Heck, Alexandre's contributions alone
> could probably be enough code to cover virtually the entire project.

This is correct - the only reason you would need to own the whole of the 
copyright is if you wanted to re-license in circumstances or under terms not 
within the existing licence.

Kai Blin:
> I'm living in the EU, where the copyright is split into "usage
> rights" and "creator's rights" and only the usage rights are
> transferable. I'm not into that legal stuff too much, so I'd leave that
> to experts to decide on, but I'd like to see a conclusive explanation on
> how this will apply to all of us new and old Europeans.

The inalienable right (that is, incapable of alienation by the owner) are 
moral rights that are unimportant for present purposes. They include things 
like a right not to have derivative works involve a derogatory treatment of 
the prior works. These rights also exist to some extent outside of the EU due 
to laws implementing various copyright convention obligations.

Mike Hearn:
> Copyright assignment in other projects has been tricky, and it can't be
> done retroactively. It usually requires developers to submit paperwork -
> we don't really want that .... do we?

The requirements for copyright assignment will vary by jurisdiction, but in 
Australia and the US it must be done in writing signed by the transferor. 
This does *not* mean it needs to be in the form of a contract (which is the 
way the FSF do it).

Non-retroactivity merely means that when you assign copyrights you do not 
transfer the right to take action against breaches prior to the assignment 
(although there will be a right to take action against further activity that 
derives from the prior breaches). You can assign copyright at any time 
*after* the copyright arises.

You cannot generally assign copyright *before* the copyright arises, however, 
since you cannot make an assignment in law of something that does not yet 
exist (in Australia the Copyright Act specifically provides for assignment of 
future copyright where this is done by contract, but AFAIK US copyright law 
does not). However if you have contracted *for value* to assign a future 
copyright, a court will normally be willing to force assignment of that 
copyright if the author refuses to do so (this is where the FSF contracts 
come in - although there may be issues of whether there is "value" in those), 
and to prevent anybody else from denying that the copyright was assigned at 
the time it arose.

A significant gotcha here is that the copyright assignment in each country 
comes under the law in that country - the copyright in each country is a 
different legal right. Even if a document purports to assign worldwide 
copyrights, if it is not in the form required by the law of some countries, 
then the original copyright holder will retain copyright in those countries.

Troy Rollo - wine at troy.rollo.name

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