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A third possibility

But there is a third possibility. The chief disadvantage of the GPL and related licences like the LGPL in a commercial context, comes from the assignment of all the copyright to a company, and the unique power it gives to the latter. There are two alternatives to this. The first is simply to allow copyright to remain with the author of each piece of code: this is the approach adopted by the Linux kernel community. The disadvantage is that it becomes almost impossible to act in concert – for example, to upgrade an entire project to a new version of the licence – because it is not practical (or perhaps even possible) to obtain every copyright-holder's agreement.

The other option is to assign all of the copyright to a single entity, but to make that a non-commercial one. This is what happens with FSF projects:

Under US copyright law, which is the law under which most free software programs have historically been first published, there are very substantial procedural advantages to registration of copyright. And despite the broad right of distribution conveyed by the GPL, enforcement of copyright is generally not possible for distributors: only the copyright holder or someone having assignment of the copyright can enforce the license. If there are multiple authors of a copyrighted work, successful enforcement depends on having the cooperation of all authors.

In order to make sure that all of our copyrights can meet the record keeping and other requirements of registration, and in order to be able to enforce the GPL most effectively, FSF requires that each author of code incorporated in FSF projects provide a copyright assignment, and, where appropriate, a disclaimer of any work-for-hire ownership claims by the programmer's employer. That way we can be sure that all the code in FSF projects is free code, whose freedom we can most effectively protect, and therefore on which other developers can completely rely.

As well as those “procedural advantages”, the other benefit in assigning copyright to a foundation like the FSF is that it produces a completely level playing-field for companies. Anyone can take that GPL'd or LGPL'd code and use it as the basis of a commercial offering; however, no company can gain an advantage over any other by offering a closed-source version too. This means that the larger free-rider problem of Apache-licensed code is avoided.

Against that background, it may well be that the “golden age of open source” that some people are prophesying might also be a golden age for open source foundations. Already, in the light of Oracle's lawsuit against Google, some are suggesting that might be safer as a project run by a foundation (admittedly, an idea that's been around for years).

It's interesting to note that one of the leaders in this field, the GNOME Foundation, has been thinking about precisely this issue of copyright assignment, and come up with a new policy:

Most of the GNOME core software has always been licensed under copyleft licenses, such as the GPL and LGPL. Some of GNOME's goals in choosing copyleft were and are:

to make sure no one organization dominates GNOME.

to ensure that all contributors to GNOME, corporate and individual, are on equal footing, which helps avoid conflicts and disagreements between contributors.

to grant both commercial and non-commercial users and developers equal rights and privileges to copy, modify, and redistribute the software.

to provide individuals the assurance that their code will be propagated in line with the spirit of the copyleft.

to provide transparency and openness in the development process, in order to create trust in the licensing framework of GNOME.

Some copyright assignment policies are consistent with these goals. Other copyright assignment policies, depending on their structure, can sometimes contradict these goals. The GNOME Foundation Board of Directors therefore carefully considers, on a case-by-case basis, any proposal to include packages with mandatory copyright assignment policies into GNOME.

The GNOME Foundation has also produced a more detailed exploration of copyright assignment. I strongly recommend anyone interested in the future of licensing – and hence of open source and the businesses created around it – to spend some time perusing its detailed discussion of what may well become the focus for yet more heated discussions in the future.

Follow me @glynmoody on Twitter or For other feature articles by Glyn Moody, please see the archive.

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