Ridiculous Assertion: Righthaven Ruling Threatens Open Source

from the let's-debunk-this-now dept

With the recent Righthaven ruling effectively declaring Righthaven’s legal strategy a sham, someone going by the somewhat uncreative name “Plessy Ferguson” sent us the following essay claiming that the ruling is a disaster for open source development. I’ll post the full essay here, and then explain why it’s wrong:

“While many supporters of net freedom continue to celebrate the recent decision penalizing the Rightshaven lawsuit mill, open source advocates are beginning to understand the brutal implications for enforcing licensing terms. Simply put, open source projects without CLAs (Contributor License Agreements) will not be able to sue anyone for breaking the license agreement. Smaller, less-professional projects will have to choose between accepting casual contributions and enforcing the license.

The limit threatens much of the casual work done by corporate partners. While it’s usually relatively easy for small, independent developers to sign a contract giving away all rights to the code, it’s another matter for a corporate developer to get permission from the legal department. If the company is paying for the development– something that is common with many projects supported by companies– the company owns the code and the company needs to sign the document. This will be too much red tape for many developers.

The interpretation also dramatically threatens an important right built into many open source licenses, the right to fork the code. In the past, anyone could take a project protected by the Gnu Public License and start adding their own enhancements. Many projects have forked over time when developers have disagreements over the best path.

The trouble is that the new team creating the fork won’t have CLAs governing the old code making it impossible for them to enforce the license. Any forked project won’t be able to enforce all of the rights, a crucial issue because the judge is requiring plaintiffs to be able to control the copyright completely before suing.

The matter also threatens some CLAs that transfered an exclusive reproduction right to any project. Some CLAs don’t transfer much more than the right to sue, something the court said couldn’t be transfered. If projects don’t renegotiate these agreements with all contributors, they’ll be unable to enforce their license.

While all of these limitations can be overcome with more legal paperwork, they still threaten the more casual open source projects. Teams will need buildmasters, coders, architects and lawyers if they want to create anything lasting. Unfortunately, the strength of open source licenses are directly related to the strength of copyright.”

I can’t decide if this is the work of someone who’s just trying to drum up bogus support for Righthaven, or who simply doesn’t understand the Righthaven ruling at all. Nothing in the Righthaven ruling supports what’s written above. Whoever wrote it appears to be trying to paint a picture saying that the Righthaven ruling makes it more difficult to transfer copyright. That’s not true. All the Righthaven ruling said was that you can’t transfer solely the right to sue over copyright. That’s it. That has nothing to do with open source development, as I don’t know of anyone in the open source world who is trying to just transfer the right to sue, while retaining the actual Section 106 rights under copyright.

The idea that forked projects won’t be able to enforce their license rights is, again, totally unrelated to the ruling. Forked projects will have a license that allows them to enforce their rights, because of the nature of the open source license they’re using, which grants such rights. Pretending otherwise is pure folly. Honestly, the more I read this piece, the more I think it’s someone who’s trying to spread pro-Righthaven FUD.

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Comments on “Ridiculous Assertion: Righthaven Ruling Threatens Open Source”

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DannyB (profile) says:

Open Source is Copyright law pure and simple

Anyone who contributes a recognizable and significant amount of code to an open source project has a copyright on the code they contributed, and can sue someone who distributes the code without a proper license.

As with ANY copyright work, if you don’t have a license, then you have no right to distribute or create derivative works.

The open source license is designed to make it easy to have a license grant from the copyright owner(s). All you need to do is abide by the license. Just like with any other copyright license.

The irony is that the typical infringer of a copyright work under an open source license is a business. They have been sued numerous times, and typically settle under very reasonable terms.

So how exactly does RightHaven have anything to do with this?

Anonymous Coward says:

Re: Open Source is Copyright law pure and simple

This is pretty much right. The essay mistakenly states that the judges in the Righthaven rulings require you to have “all” the rights to bring a suit. That’s not true; they just say you can’t have *only* a “right to sue” untethered to any other substantive right.

It does raise interesting questions about who owns copyright interests in open source projects (mainly whether contributors are joint copyright owners or not), but that’s not relevant to Righthaven, and you wouldn’t need an assignment from every contributor to bring a suit (although a defendant could potentially get a license from *one* contributor as a complete defense, if all contributors are deemed joint authors).

DannyB (profile) says:

Re: Re: Open Source is Copyright law pure and simple

Since the copyright owner can bring a suit, ANY of the individual authors can bring a suit. Each author is copyright owner of {his|her} own code. (eg, Linux)

If a project gets copyright assignment from authors, then the assignee could bring suit. (eg, OpenOffice.org)

Still Righthaven is irrelevant.

Anonymous Coward says:

Re: Re: Re: Open Source is Copyright law pure and simple

Sure. I guess the only case where an individual contributor couldn’t bring a suit would be in the assignment case.

I’m just wondering about the possibility that all the individual contributors to a work could be considered joint authors, in which case they could sue for copying of contributions they didn’t themselves create, and could issue licenses (that don’t conflict with whatever license they are already using) to code they didn’t themselves create.

The more I think about it, though, I think that they are probably not joint authors.

DannyB (profile) says:

Re: Re: Re:2 Open Source is Copyright law pure and simple

I’m just wondering about the possibility that all the individual contributors to a work could be considered joint authors, in which case they could sue for copying of contributions they didn’t themselves create, and could issue licenses (that don’t conflict with whatever license they are already using) to code they didn’t themselves create.

Not clear what you are asking.

> I guess the only case where an individual contributor
> couldn’t bring a suit would be in the assignment case.

That depends on the nature of the assignment.

But if the author couldn’t bring suit, the assignee who obtained ownership of the copyright certainly could.

DannyB (profile) says:

The trouble is that the new team creating the fork won’t have CLAs governing the old code making it impossible for them to enforce the license. Any forked project won’t be able to enforce all of the rights, a crucial issue because the judge is requiring plaintiffs to be able to control the copyright completely before suing.

They will be able to enforce their rights on any new code that they write.

Example: Make a fork of, say, Linux. You don’t own any copyright on the existing code. Call your fork Foobarix. Contribute some new code to Forbarix. Now if Foobarix is so good that Jane uses it in a way that does not comply with the open source license you granted them, then you certainly can enforce your rights on the new code that makes Foobarix what it is. If your new code isn’t so great, then Jane might just get a different Linux and infringe that. In this case, you have no rights to enforce since none of YOUR code copyrights were infringed. But you can bet that some other Linux author’s code copyright was infringed. There are thousands of authors. Want to risk that at least one of them won’t enforce their rights against the infringer?

Steven (profile) says:

Re: Re:

That’s not quite right. Make a fork of Linux (actually just download Linux) and you have been granted distribution, reproduction, and possibly other rights that are lined out in copyright law.

That makes me wonder… If somebody is infringing on the Linux kernel copyright (as an example) would anybody who has downloaded the kernel source code have standing to sue? Certainly anybody with a fork would have standing. In theory it would seem that violating the GPL (as an example) would open you up to suit from just about anybody.

Any actual lawyers care to rip that logic apart?

Steven (profile) says:

Re: Re: Re: Re:

Basically the GPL grants me distribution rights. It doesn’t seem to require me to make modifications. From the GPL:

You may convey verbatim copies of the Program’s source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice; keep intact all notices stating that this License and any non-permissive terms added in accord with section 7 apply to the code; keep intact all notices of the absence of any warranty; and give all recipients a copy of this License along with the Program.

That seems to be granting me distribution rights. But like I said, I’m not a lawyer so I’m assuming there is a flaw in my logic somewhere.

Anonymous Coward says:

Re: Re: Re:2 Re:

The GPL gives you permission to do things, provided you comply with its provisions.

It does not give you *exclusive* rights or any copyright, so you can’t sue for copyright infringement.

Now, if you create something original (and fix it in a tangible medium of expression), then you’ll have a copyright in that original work.

Aerilus says:

Re: Re: Re:


I am not sure if you are arguing semantics but downloading Linux most definitely gives you the right to copy it

Ubuntu is a collection of thousands of computer programs and documents created by a range of individuals, teams and companies.

Each of these programs may come under a different licence. This licence policy describes the process that we follow in determining which software will be included by default in the Ubuntu operating system.

Copyright licensing and trademarks are two different areas of law, and we consider them separately in Ubuntu. The following policy applies only to copyright licences. We evaluate trademarks on a case-by-case basis.

Categories of software in Ubuntu

The thousands of software packages available for Ubuntu are organised into four key groups or components: main, restricted, universe and multiverse. Software is published in one of these components based on whether or not it meets our free software philosophy, and the level of support we can provide for it.

This policy only addresses the software that you will find in main and restricted, which contain software that is fully supported by the Ubuntu team and must comply with this policy.

Ubuntu ‘main’ component licence policy

All application software included in the Ubuntu main component:

Must include source code. The main component has a strict and non-negotiable requirement that application software included in it must come with full source code.

Must allow modification and distribution of modified copies under the same licence. Just having the source code does not convey the same freedom as having the right to change it. Without the ability to modify software, the Ubuntu community cannot support software, fix bugs, translate it, or improve it.

Ubuntu ‘main’ and ‘restricted’ component licence policy
All application software in both main and restricted must meet the following requirements:

Must allow redistribution. Your right to sell or give away the software alone, or as part of an aggregate software distribution, is important because:

You, the user, must be able to pass on any software you have received from Ubuntu in either source code or compiled form.

While Ubuntu will not charge licence fees for this distribution, you might want to charge to print Ubuntu CDs, or create your own customised versions of Ubuntu which you sell, and should have the freedom to do so.

Must not require royalty payments or any other fee for redistribution or modification.It’s important that you can exercise your rights to this software without having to pay for the privilege, and that you can pass these rights on to other people on exactly the same basis.

Must allow these rights to be passed on along with the software. You should be able to have exactly the same rights to the software as we do.

Must not discriminate against persons, groups or against fields of endeavour. The licence of software included in Ubuntu can not discriminate against anyone or any group of users and cannot restrict users from using the software for a particular field of endeavour – a business for example. So we will not distribute software that is licensed “freely for non-commercial use”.

Must not be distributed under a licence specific to Ubuntu. The rights attached to the software must not depend on the program being part of Ubuntu system. So we will not distribute software for which Ubuntu has a “special” exemption or right, and we will not put our own software into Ubuntu and then refuse you the right to pass it on.

Must not contaminate other software licences.The licence must not place restrictions on other software that is distributed along with it. For example, the licence must not insist that all other programmes distributed on the same medium be free software.

May require source modifications to be distributed as patches. In some cases, software authors are happy for us to distribute their software and modifications to their software, as long as the two are distributed separately, so that people always have a copy of their pristine code. We are happy to respect this preference. However, the licence must explicitly permit distribution of software built from modified source code.

Modplan (profile) says:

Re: Re: Re:3 Re:

No one said anything about giving you an exclusive right, why that’s being brought in I have no idea. The entire point of the GPL is that by distributing GPL’d code, the reciever is automatically granted the ability to modify and distribute code. Anybody that forbids someone who recieved GPL’d code from redistributing or modifying it is in violation, so I’d imagine you could sue for someone breaching the license that explicitly grants you the ability to distribute and modify, even without being the copyright holder.

MrWilson says:

Re: Re: Re:2 Re:

You’re confusing the terminology. A copyright is not a right to copy. Those are two different things.

A copyright is a government-granted “right” to control how a work in a fixed medium can be copied, within the bounds of copyright law (i.e. you can’t control how people copy your work if they do so in a manner consistent with fair use principles, unless you are a corporation and have a lot of money and Congress in your pocket).

A right to copy a copyrighted work can be given via a license to whomever the copyright owner chooses. This can be an end user license agreement, a creative commons license, the GPL, et cetera.

So downloading Linux gives you a right to copy but not the Linux copyrights. Copyrights are exclusive rights that can’t be held by multiple entities.

DannyB (profile) says:

Re: Re: Re:2 Re:

I didn’t read your entire post either.

> I am not sure if you are arguing semantics
> but downloading Linux most definitely gives
> you the right to copy it

Downloading Linux most certainly DOES NOT make you the copyright owner. You are merely a licensee, granted a license from the copyright owners. The license is known as the GPLv2. But you don’t merely become copyright owner. Furthermore, you loose your status as licensee if you breach the license.

jcar2 (profile) says:

Re: Re: Re:4 Re:

The GPL does NOT make copyright null and void, anymore than a Creative Commons license makes copyright null and void.

The GPL is merely a license on TOP of copyright that grants more rights to the user. It also requires the user to pass along the same rights to others, if they distribute.

If someone violates the GPL, then they are back to basic copyright, which allows no rights at all (all rights reserved and all that). So, Copyright is the foundation that the GPL rests upon. Without copyright there’s no use for GPL (copyleft). (No, I’m not a lawyer, but you don’t have to be a lawyer to understand the simple terms of a GPL license)…the FSF home page explains it quite clearly.

Gwiz (profile) says:

Re: Re: Re: Re:

Simply downloading Linux doesn’t give you any copyright rights. I’m not sure where you got that notion.

Actually I think the GPL license does actually transfer some of the Section 106 rights to the end user. (All of you legal eagles out please correct me if I am wrong here).

The first three 106 rights are:

(1) to reproduce the copyrighted work in copies or phonorecords;

GPL license says you can make all the copies you want to.

(2) to prepare derivative works based upon the copyrighted work;

GPL license says you can do this too. (Actually it encourges it)

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

GPL licenses lets you do this also. You can absolutely build on other people’s code and try to sell it if you desire.

So, yes, I believe the GPL License does actually transfer some of the copyright rights.

MrWilson says:

Re: Re: Re:2 Re:

You’re missing the most important part of Section 106, emphasis mine:

“106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:”

These are exclusive rights for copyright owners, not rights to copy for licensees. A license cannot confer a copyright or else the license becomes invalid because the entity would no longer own the copyrights in order to license them if they conferred them to the licensee.

Gwiz (profile) says:

Re: Re: Re:3 Re:

These are exclusive rights for copyright owners, not rights to copy for licensees. A license cannot confer a copyright or else the license becomes invalid because the entity would no longer own the copyrights in order to license them if they conferred them to the licensee.

Yeah, figured that out myself not too long after I posted that. Licensing a right isn’t the same as transferring that right.

It tends to get a bit confusing at times, especially with the GPL license, since it’s basically working backwards from our current state of copyright laws and attempts to give rights back, but still has to be confined within the copyright laws in order to be enforceable. It’s really kind of crazy in my opinion.

MrWilson says:

Re: Re: Re:4 Re:

The only people who can represent a rights holder are their lawyers…in court. You’ll notice that despite the fact that all the members of the RIAA might sue someone for distributing their music and infringing their copyrights, the cases are always Universal Music Group v. ________ rather than RIAA v. ________. The RIAA never represents the actual companies as if they were rights holders.

This is exactly why the Righthaven cases have no standing. Righthaven must be a rights holder in order to have standing to sue. Since the right to sue is not a transferable right, just negotiating for the right to sue is invalid grounds for filing a lawsuit.

Nicedoggy says:

Re: Re: Re:5 Re:

Sure, but I read about a court in France that concluded that the GPL grant enough rights to anyone that they can sue others.

You see the GPL grant anybody all the rights that the original copyright owner had so the court concluded that the public in general is the copyright holder and can bring a suit against an individual or entity or something like that, which doesn’t happen to “normal copyright”.

Nicedoggy says:

Re: Re: Re:6 Re:

Here is the crux of the problem, the GPL grant anybody the same rights as the original creator under copyright, since copyright is about rights if everybody gets those rights they are all copyright holders and have a stake on it no?

Even if you are not the original creator, you hold rights that were granted to you by another person and since you can grant those same rights to others merely by distributing it that makes you in fact a copyright holder of that software, that can sue others that infringe on your rights given by others, yes?

I don’t think it is that clear cut people can get to other conclusions if they stop to think about it.

What are the rights copyrights grant you and what are the rights the GPL grants to others if they are all the same then in fact everybody is in fact a copyright holder of GPL code.

sheenyglass (profile) says:

Re: Re: Re:

Lawyer here. Try not to say lawyer three times in front of a mirror with the lights off, because we are really boring and hard to get rid of. Also I don’t specialize in software licensing, so grain of salt etc.

In answer to your question, maybe. Just because you are licensed to do x, y or z doesn’t mean you have standing to sue. Especially becasue what we are talking about isn’t an infringement of those rights, but an infringement of share-alike provisions or the source availability provisions. For this reason the FSF generally wants people to assign copyright to them so they can enforce the GPL. (http://www.gnu.org/licenses/why-assign.html)

dwg says:

Re: Re: Re:

You don’t gain any rights by downloading the kernel, since that copyright belongs to Linux and Linux has specifically chosen to make that kernel available to the public. So, to put it in common copyright terms, the kernel is the original work, and any forked project is a “derivative work.” Copyrights in a derivative work extend only to the new material added to the original work, not the original work itself (otherwise anyone with the original work and its corresponding copyright could extend infinitely the copyright on the original work simply by creating derivative works–movies and their sequels, for example. Also, anyone creating a derivative work would somehow gain the copyright for the original work as well–giving a potentially endless number of derivative-works creators the copyright to the original.

Richard (profile) says:

Re: Re:

You are right of course, however, contributors to large open source projects usually assign their rights to a cover organisation such as FSF.

The reason why the Rightshaven case is irrelevant is that, given the nature of the GPL these authors have no problem assigning the whole copyright over to FSF – unlike Stephens Media, which tried to keep all but the right to sue.

Richard (profile) says:

Re: Re: Re: Re:

Also the Rightshaven decision is not really anything new.
True – it is just a re-iteration of a basic principle of law. When you sue you do so co correct a wrong. Necessarily you must be the wronged party. In a copyright case that means you must be the holder of an exclusive right that has been violated. The recipient of “the right to sue” would only be able to sue if the right to sue had been violated. How that could happen is difficult to imagine (I’ve tried and failed!).

Brendan (profile) says:

Undermining Open Source?

My first thought was that this was a shot across the bow against corporate use of open source solutions, attempting to introduce risk and uncertainty where there is none.

It seems to heavily attack corporate contributions to open source projects, which to me today largely is an attack on Android and its vendor customizations.

It could also be referring to webserver architecture and Linux at large, but I suspect the FUD is more pointed.

DannyB (profile) says:

Re: Re:

That’s not the whole point. Part of it perhaps.

The license expressly grants you many rights. Clearly. No need to ask permission individually. No need for each licensee to execute a license from the copyright owner.

All you have to do is merely comply with the license. If you breach the license, you loose your license and therefore all licensed rights.

People who breach the license deserve to be sued and sometimes have been.

IP Lawyer says:

Practicing IP lawyer here.

Wow. Whoever wrote that essay sincerely doesn’t get it. IMO what Righthaven did is called Champerty, and it is, and should be, illegal. To say that the Righthaven ruling in any way affected a private party’s right to transfer copyright is not only wrong, it is absurd.

Not only that, this ruling has no conceivable impact on Open Source Licensing whatsoever. It simply is irrelevant. Transferring one of the 17 usc 106 rights INHERENTELY grants a right to sue thereunder. In other words, the Righthaven decision is the exact opposite of what this writer is claiming, specifically, that the right to sue is not a right that is covered by Copyright. The “exclusive rights” of copyright are listed in 17 USC 106, and only they can be transferred. The ability to sue is how one enforces these rights. That guy really just does get A1 about how law works.

Lawrence D'Oliveiro says:

Could Any Mere Recipient Of GPL?d Code Sue?

Here?s my reasoning:

* You receive some proprietorily-licensed code from Party X that contains components that were published under the GPL.
* Party X who gave you that code under those restrictions is thereby violating your rights as granted to you under the GPL.
* Does this give you the right to sue them?

If the lawsuit were dismissed, does that mean the GPL is invalid? But if it is invalid, then Party X have no permission to use that GPL?d code at all, since the GPL is the only thing giving them that permission. Therefore they are automatically guilty of copyright infringement.

Anonymous Coward says:

Re: Could Any Mere Recipient Of GPL?d Code Sue?

“Party X who gave you that code under those restrictions is thereby violating your rights as granted to you under the GPL”

Err, no.

Under your scenario, party X didn’t license the software to you under the GPL, but rather under a proprietary license. Your rights were not violated in this way.

The copyright holders of the GPL’d software they used, however, have indeed had their rights violated. They are the party with the standing to sue.

Now, you may have cause to sue party X for fraud (they misrepresented that they were the copyright holders), but only if you were damaged as a result. This is a separate matter from copyright violation, however.

Karl (profile) says:

How the FSF does it

I actually know the legal team at the FSF, so I’ll explain what they do and why they do it.

For any code that is submitted to an FSF Linux distribution, the FSF requires that the authors assign all copyrights to the FSF. That the code be released under the GPL is a condition for the assignment.

The reason is simple: If the FSF finds out that a company violated the GPL (e.g. they “TiVO’d” the source code), and the FSF was not assigned the copyrights, then the FSF would have no standing to sue the violating company.

It’s the same with most open-source projects. If someone violates the GPL, only the author of the code that is infringed upon can sue. The GPL does not grant an exclusive license to users (in fact, that’s the entire point), and an exclusive right is required for standing.

Now, if a company (say, Red Hat) creates open-source software, usually they will require anyone who writes code for their “official” version also assign copyrights to Red Hat. Assuming it’s not a “work for hire” in the first place.

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