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. icon
    DannyB (profile), 22 Jun 2011 @ 11:48am

    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?

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