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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  1. identicon
    Aerilus, 22 Jun 2011 @ 12:49pm


    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.

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