Addressing Oren's comment re: finding

[johnvpetersen]

From Oren's comments here: http://www.infoq.com/news/2009/09/codeplex-foundation

"The biggest problem that I have with CPF is with the copyright
ownership assignment. That is simply not possible in most projects.
Not because I suspect something nefarious, but because most projects
don't require transferring formal ownership of the code contributors
write to the project. For that matter, most projects never fully
define what "project" is. It isn't a separate legal entity, in almost
all cases.

Hypothetical example: Let us say that the Castle Project wants to join
the CPF. There is no possibility of transferring ownership because you
would have to hunt down all the committers (including some that
haven't been heard from in years), and then find all the people who
ever contributed a patch to Castle (with the same problem of missing
people)."

I think this is more of a perceived problem. Basically, you treat
things like a class action. It boils down to reasonable notice. In a
class action, it is not practical to find all members of a class.
Instead, reasonable measures are taken to provide notice. To the
extent you can directly notify people - you do.

In the case Oren brings up, a 90 day period where there is ample
notice of the intended action, IMO, would suffice as reasonable
measures.

Then, there is the notion of trade usage. People that have submitted
patches, made contributions ,etc - IMO, have expressly provided those
items under an open license anyway. Their intent was to share. This is
the essense of what OSS contributions are about. I would think that
somebody would have a difficult time arguing on one hand, they wanted
to contribute to the project and then on the other hand, complain the
the project is being vested with another entity wherein that receiving
entity will still comply with the original license. And let's not
forget that the project substantively remains unchanged. You can do
everything you could do before. So in a very real sense, the
circumstances, a contributor's vested in interest in the enterprise
has not changed, and therefore, the is no equitable interest that has
been impaired or prejudiced.

I am not sure you would even have to provide notice. However, it does
provide belt and suspenders to an argument that would support the
foundation and others as having "clean hands".

<JVP>

[Seth Juarez]

I would have to agree here. Why does there need to be copyright
assignment? The worry is not that MS will "steal" our code since we
actually are giving it away anyway. Why the need for the extra
constraint?

-Seth

[Marcus Cuda]

FSF explanation on why they require assignment:
http://www.gnu.org/licenses/why-assign.html

The same reasoning probably applies to the CodePlex Foundation

[Phil Haack]

From what I've heard, copyright assignment isn't required for CodePlex foundation. You can also license code to the foundation in order to participate.

However, I'm guessing that assigning copyright over to the foundation is what provides some amount of legal protection. For example, if some company decides that my open source project infringes on their copyright or patents, they'll look at the copyright notice to figure out who to sue, right?

I'd rather that notice have CodePlex Foundation than my name on it. After all, the copyright holder is not so important to me as the license is. The license will always allow the source to be available. The copyright would simply allow the foundation to re-license the code with other licenses I might not have chosen, which doesn't bother me since I'm already giving the code out for free and the code will always be available under the original license.

Phil

[Scott Hanselman]

Copyright assignment is *optional* - only if it makes sense.

--
Scott Hanselman - Tiny phone, tiny email

[Scott Hanselman]

Here's the same comment I made on the InfoQ article to clear up this point:

There seems to be some confusion about copyright assignment, and some things are being said that aren't true. Just to be clear:

This page: codeplex.org/about.aspx points to both a contribution (assignment) and license agreement. 

• Our contribution agreement. This serves as a template for how companies or individuals may make copyright or patent contributions to the Foundation.


• Our license agreement. This serves as a template for how companies or individuals may license copyrights or patents to the Foundation.

Both serve as templates for how companies and individuals may contribute to the foundation. Obviously as a board, they can decide to accept alternatives. But from the very start of this planning they have expected both copyright and assignment to be an option for individuals and companies. ASF requires assignment, others allow only license, we should allow both.

--

Scott Hanselman - Tiny phone, tiny email

On Sep 16, 2009, at 8:43 AM, Seth Juarez <se...@strivea.com> wrote:

[johnvpetersen]

Scott..

Regardless of agreement, I think substantively, you end up at the same
place..

Re: the contribution agreement - Paragraph 4a - License Grant
Re: the license agreement - Paragraph 2 - The assignment.

The way the whole thing shakes out, whether it is an assignment or
license, IMO, I think people end up in the practically, the same
place. Different terms of art that gets you to substantively, the same
place. I think the distinction actually makes for confusion. The
bottom line, while there may not be a cessation of rights, the rights
that exist are bifurcated between CodePlex and one or more other
entities.

<JVP>

On Sep 16, 11:53 am, Scott Hanselman <sc...@hanselman.com> wrote:
> Copyright assignment is *optional* - only if it makes sense.
>
> --
> Scott Hanselman - Tiny phone, tiny email
>

> On Sep 16, 2009, at 8:43 AM, Seth Juarez <s...@strivea.com> wrote:
>
>
>
> > I would have to agree here. Why does there need to be copyright
> > assignment? The worry is not that MS will "steal" our code since we
> > actually are giving it away anyway. Why the need for the extra
> > constraint?
>
> > -Seth
>

> > On Wed, Sep 16, 2009 at 8:55 AM, johnvpetersen <johnvpeter...@gmail.com

[johnvpetersen]

Scott..

Regardless of agreement, I think substantively, you end up at the same
place..

Re: the contribution agreement - Paragraph 4a - that is a license
Re: the license agreement - Paragaph 2 - that is the assignment

Two different terms of art that in this context, leads you to
practically the same place. Anyway you shake it out, a bifurcation of
rights is occuring in favor of the foundation. Nothing wrong with
that...I get it. However, to make the distinction between the two,
when IMO, there is no practical distinction, ends up confusing
people.

JVP

On Sep 16, 11:53 am, Scott Hanselman <sc...@hanselman.com> wrote:

> Copyright assignment is *optional* - only if it makes sense.
>
> --
> Scott Hanselman - Tiny phone, tiny email
>

> On Sep 16, 2009, at 8:43 AM, Seth Juarez <s...@strivea.com> wrote:
>
>
>
> > I would have to agree here. Why does there need to be copyright
> > assignment? The worry is not that MS will "steal" our code since we
> > actually are giving it away anyway. Why the need for the extra
> > constraint?
>
> > -Seth
>

> > On Wed, Sep 16, 2009 at 8:55 AM, johnvpetersen <johnvpeter...@gmail.com

[johnvpetersen]

Sorry for the dupped post guys.. I thought the first one was lost!! :
()

[johnvpetersen]

I was just labeled a Google Group NOOB!

On Sep 16, 12:22 pm, johnvpetersen <johnvpeter...@gmail.com> wrote:

[Louis DeJardin]

IANAL - but if you grant license without assigning copyright, aren't
you retaining the ability to have things like a dual license model?
Possibly remaining more personally liable to infringement and such...

Lou

On Sep 16, 2009, at 9:18 AM, johnvpetersen <johnvp...@gmail.com>
wrote:

[Mark]

The model agreements we have posted are just that: models.

Scott is absolutely right that their use is optional. They exist now
because we know that there are companies and individuals that want to
use just such agreements. Companies and projects don't necessarily
want to spend a lot of time or money on the legal work about how best
to handle copyrights and patent rights for open source projects. If we
can do some of the legwork for them, then that's a good thing. If a
different agreement is better for a particular company or situation,
then we'd be happy to add more models to our collection of model
agreements.

-Mark Stone
Deputy Director
The CodePlex Foundation

[johnvpetersen]

>.personally liable to infringement

Not sure I understand that... If you infringe, you are liable.

In terms of dual licensing, do you mean a situation wherein at some
point down the road, a propriatary license surfaces? I suppose it
may...but how realistic of a possibility would that be? Certainly,
under the LGPL, folks can take libraries and incorporate them into
commercial applications. On the assignment side, I will refer to
paragraph 5 - which is pretty wide open. As the now licensee (former
cw holder), I am free to sublicense. How far does that go? I think it
goes pretty far..with little or no restriction. This all gets to my
point that under either agreement, I think you are substantively in
the same shoes... I love to have another legal opinion on this...
Perhaps I am missing something on the matter.

JVP

On Sep 16, 12:31 pm, Louis DeJardin <louis.dejar...@gmail.com> wrote:
> IANAL - but if you grant license without assigning copyright, aren't  
> you retaining the ability to have things like a dual license model?  
> Possibly remaining more personally liable to infringement and such...
>
> Lou
>

> On Sep 16, 2009, at 9:18 AM, johnvpetersen <johnvpeter...@gmail.com>  

[johnvpetersen]

OK... I see what you are talking about... On the site, they are
referred to as templates. Seems to me that this somewhat counter-
productive. i.e., using a model approach, it means that every deal you
get is going to require some analysis to see whether the proposed
agreement will actually be compatible with CodePlex. I would think
CodePlex would want a standard agreement. With all of these different
agreements, I would think that ends up creating more questions for the
foundation. You end up making variability the rule...not the
exception. In a legal environment, you want as much consistency and
predictability as you can get.

JVP

[scott...@gmail.com]

So regardless of the logistics of transferring the Copyright to the
CodePlex Foundation, transferring copyright does provide one big
benefit. It means that the project can live on even if a contributor,
or founder or sole developer, drops out. This is one of the biggest
arguments I hear against the use of OSS in software. "Well, what if
development stops on that project. Then I'm stuck.". While I think
that is a B.S. reason, mainly because it's true of EVERY piece of
software (just ask any MSN Music or "PlaysForSure" customer), it is
true. If a single person owns the CopyRight, you can't do much about
that other than wait for it to lapse into the Public Domain (Which
Disney will ensure is at least a century if they have their way).

[Ayende Rahien]

Scott,
That had happened quite often during the years, if someone else is
interested, they pick it up.
Simple, easy.
If I want to run a project in a way that is different than the
copyright holder wants to, I get to fork it.
The only requirement is that I would name it differenetly.

On Sep 16, 9:32 pm, "sc...@lazycoder.com" <scottck...@gmail.com>
wrote:

[johnvpetersen]

>>
So regardless of the logistics of transferring the Copyright to the
CodePlex Foundation, transferring copyright does provide one big
benefit. It means that the project can live on even if a contributor,
or founder or sole developer, drops out.
>>

Exactly... As a very recent example, look at what the jQuery team
did..

http://blog.jquery.com/2009/01/14/jquery-13-and-the-jquery-foundation/
Look at point 5. Then, look at what the software conservancy is
providing.

There are plenty of examples out there. CodePlex does not need to try
and reinvent the wheel here... Again, the key question is what precise
role is the foundation filling here?

JVP




On Sep 16, 2:32 pm, "sc...@lazycoder.com" <scottck...@gmail.com>
wrote:

[Ayende Rahien]

Scott,
The license (section 4/a) still doesn't work for something like
NHibernate.
I literally _cannot_ give you a license to use NHibernate under any
other license than the LGPL.
That section needs to be amended so it is clear that sublicensing must
happen under the same license as the original project.

On Sep 16, 6:54 pm, Scott Hanselman <sc...@hanselman.com> wrote:
> Here's the same comment I made on the InfoQ article to clear up this  
> point:
> There seems to be some confusion about copyright assignment, and some  
> things are being said that aren't true. Just to be clear:
>
> This page: codeplex.org/about.aspx points to both a contribution  
> (assignment) and license agreement.
>
> Our contribution agreement. This serves as a template for how  
> companies or individuals may make copyright or patent contributions to  
> the Foundation.
>
> Our license agreement. This serves as a template for how companies or  
> individuals may license copyrights or patents to the Foundation.
>
> Both serve as templates for how companies and individuals may  
> contribute to the foundation. Obviously as a board, they can decide to  
> accept alternatives. But from the very start of this planning they  
> have expected both copyright and assignment to be an option for  
> individuals and companies. ASF requires assignment, others allow only  
> license, we should allow both.
>
> --
> Scott Hanselman - Tiny phone, tiny email
>

> On Sep 16, 2009, at 8:43 AM, Seth Juarez <s...@strivea.com> wrote:
>
>
>
> > I would have to agree here. Why does there need to be copyright
> > assignment? The worry is not that MS will "steal" our code since we
> > actually are giving it away anyway. Why the need for the extra
> > constraint?
>
> > -Seth
>

> > On Wed, Sep 16, 2009 at 8:55 AM, johnvpetersen <johnvpeter...@gmail.com

[johnvpetersen]

>>
If I want to run a project in a way that is different than the
copyright holder wants to, I get to fork it.
>>

Only if the license grants that right...which I concede that in OSS
software, that will be the case.

I think the real issue here is continuity. Nonetheless, I get your
point to. The refrain I have heard from you, in essense, is what does
this all do for the project. And as in the last few days, through a
series of questions, I am hard pressed to find an answer. The CodePlex
folks are going to have to step up here. While I think it is a good
idea (in principle) - that is not enough. There needs to be
concreteness to it. Increasingly, I am swinging your way on the
matter.

JVP

[Ayende Rahien]

If you look at the OSS definition by the OSI (which is what I subscribe to):
http://opensource.org/docs/osd

Specifically, all OSS projects, allow that (section 3).

Since the topic under discussion is OSS projects, I don't see a point talking about other types of software.

[johnvpetersen]

I agree...which is why I stated that in the OSS space, that will be
the case. There was a question in some other area: re: dual
licensing...which is another concept that folks are talking about.

JVP

On Sep 16, 2:54 pm, Ayende Rahien <aye...@ayende.com> wrote:
> If you look at the OSS definition by the OSI (which is what I subscribe to):http://opensource.org/docs/osd
>
> Specifically, all OSS projects, allow that (section 3).
>
> Since the topic under discussion is OSS projects, I don't see a point
> talking about other types of software.
>

[Ayende Rahien]

Dual licensing still implies that one license is OSS, no?

[John Petersen]

Yes.

[Louis DeJardin]

For example mysql, which enforced a strict copyright assignment for contributions. As copyright holder they could offer an OSS license on one hand and a commercial license on a slightly different codebase on the other. People who used the software under the OSS license did not have the same right to re-license commercially.

I mention that as a reason someone could want to grant license but not assign copyright. Though IANAL...

But the liability was just a comment from my own point of view. I have shared a project under the ASL that's copyright under my name, but if some patent holding company decides I've crossed the line over something intentionally vague (like the ability to mix upper and lower case letters) I'm speculating it might be to my advantage to have assigned the copyright to a foundation.

Being too small to sue is one thing, but some of the projects that become far more popular could start to look attractive.

Again, IANAL...

[Phil Haack]

Also, I don’t think it’s the size that is the only incentive to sue. If your free program for mixing upper and lower case letters becomes very popular, it may cut into the business for the Enterprise Letter UpperLowerCaser product and they might feel inclined to sue simply because they can afford to and know you cannot afford to fight it.

 

Phil

 

From: codeplex-...@googlegroups.com [mailto:codeplex-...@googlegroups.com] On Behalf Of Louis DeJardin
Sent: Wednesday, September 16, 2009 1:10 PM
To: codeplex-...@googlegroups.com
Subject: Re: Addressing Oren's comment re: finding

 

For example mysql, which enforced a strict copyright assignment for contributions. As copyright holder they could offer an OSS license on one hand and a commercial license on a slightly different codebase on the other. People who used the software under the OSS license did not have the same right to re-license commercially.

[Jesse Ezell]

Why so much concern about ownership transfer? The foundation should be
sponsoring new projects that would not have been possible without the
resources of the foundation, not just letting existing projects
rebrand themselves to get free $$$. I don't want to see another ORM
mapper sponsored by the foundation when we have a ton of options,
including the stuff in the .NET framework itself. That would be a
waste of the foundation's resources. I want to see the foundation
sponsor something ambitious from the ground up... something like a
full AMQP implementation native to .NET or an open source IDE
framework. I want to see the types of projects that just aren't
happening today because one guy can't put it together in a few
weekends.

Jesse

On Sep 16, 1:14 pm, Phil Haack <phi...@microsoft.com> wrote:
> Also, I don't think it's the size that is the only incentive to sue. If your free program for mixing upper and lower case letters becomes very popular, it may cut into the business for the Enterprise Letter UpperLowerCaser product and they might feel inclined to sue simply because they can afford to and know you cannot afford to fight it.
>
> Phil
>
> From: codeplex-...@googlegroups.com [mailto:codeplex-...@googlegroups.com] On Behalf Of Louis DeJardin
> Sent: Wednesday, September 16, 2009 1:10 PM
> To: codeplex-...@googlegroups.com
> Subject: Re: Addressing Oren's comment re: finding
>
> For example mysql, which enforced a strict copyright assignment for contributions. As copyright holder they could offer an OSS license on one hand and a commercial license on a slightly different codebase on the other. People who used the software under the OSS license did not have the same right to re-license commercially.
>
> I mention that as a reason someone could want to grant license but not assign copyright. Though IANAL...
>
> But the liability was just a comment from my own point of view. I have shared a project under the ASL that's copyright under my name, but if some patent holding company decides I've crossed the line over something intentionally vague (like the ability to mix upper and lower case letters) I'm speculating it might be to my advantage to have assigned the copyright to a foundation.
>
> Being too small to sue is one thing, but some of the projects that become far more popular could start to look attractive.
>
> Again, IANAL...
>

> On Wed, Sep 16, 2009 at 12:28 PM, John Petersen <johnvpeter...@gmail.com<mailto:johnvpeter...@gmail.com>> wrote:
> Yes.
>

> On Wed, Sep 16, 2009 at 3:27 PM, Ayende Rahien <aye...@ayende.com<mailto:aye...@ayende.com>> wrote:
>
> Dual licensing still implies that one license is OSS, no?
>

> On Wed, Sep 16, 2009 at 10:04 PM, johnvpetersen <johnvpeter...@gmail.com<mailto:johnvpeter...@gmail.com>> wrote:
>
> I agree...which is why I stated that in the OSS space, that will be
> the case. There was a question in some other area: re: dual
> licensing...which is another concept that folks are talking about.
>
> JVP
>

> On Sep 16, 2:54 pm, Ayende Rahien <aye...@ayende.com<mailto:aye...@ayende.com>> wrote:
>
>
>
> > If you look at the OSS definition by the OSI (which is what I subscribe to):http://opensource.org/docs/osd
>
> > Specifically, all OSS projects, allow that (section 3).
>
> > Since the topic under discussion is OSS projects, I don't see a point
> > talking about other types of software.
>

> > On Wed, Sep 16, 2009 at 9:48 PM, johnvpetersen <johnvpeter...@gmail.com<mailto:johnvpeter...@gmail.com>>wrote:
>
> > > If I want to run a project in a way that is different than the
> > > copyright holder wants to, I get to fork it.
>
> > > Only if the license grants that right...which I concede that in OSS

> > > software, that will be the case.- Hide quoted text -
>
> - Show quoted text -

[Mark]

Jesse said: "I don't want to see another ORM mapper sponsored by the

foundation when we have a ton of options, including the stuff in
the .NET framework itself. That would be a waste of the foundation's
resources. I want to see the foundation sponsor something ambitious
from the ground up..."

I think this is an interesting point, and one we'll continue to talk
about. Getting people to start open source projects is easy. Getting
them to fill in needed gaps or address real market needs is harder.
When I worked at VA Linux Systems we went out and hired a number of
the guys capable of writing device drivers for Linux, and just paid
them to do it. Why? Because writing device driver code isn't fun,
isn't easy, and yet it was vital to VA Linux's business that good
Linux device drivers be out there. This is a big part of why software
companies exist: to pay devs to write the code that they are not
inclined to write or would not think to write on their own.

In the coming days and weeks we'll want to work through with all of
you what the criteria should be for a project to be affiliated with
the CodePlex Foundation. I certainly hope that one of those criterion
will be "does the project address a real gap in the present open
source eco-system?"

[John Petersen]

>>
I certainly hope that one of those criterion
will be "does the project address a real gap in the present open
source eco-system?"
>>

In terms of selection process, what happens if the proposed project has or is perceived to compete with a closed source project of another software company?

I think the selection process is something that needs to be discussed and examined at great length.

JVP