Subject: Re: how much right do I have on my project, if there are patches by others?
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 6 Jul 2007 13:59:11 -0700

Quoting John Cowan (cowan@ccil.org):

> It is, however, how patches are accepted and processed: patch authors,
> if the patch is substantial and is accepted into the original work,
> do meet the definition of joint authorship.

I doubt that.  I personally find Catherine and Eric Raymond's analysis 
at http://www.catb.org/~esr/Licensing-HOWTO.html#id2790762 persuasive.
(Note that this is within Catherine's legal specialty.)  Quoting:

  For reasons we will discuss in detail, the "joint work" model probably
  does not actually apply to open-source projects. Rather, they look more
  like what the law calls "collective works", a new category created by
  the copyright-law revision of 1976. One of the purposes of the 1976
  revision was to scupper a line of bad case law that overextended the
  concept of "joint work", and courts have since shown a marked preference
  for narrowing the conditions of joint work even further than statute
  required.

  A "collective work" is a creative work of a group of individuals who do
  not share a common copyright in the result. Individual portions of such
  a work may (and often do) have copyrights, and there may also be a
  collective-work copyright on the work as a whole. The difference is
  practically relevant because, according to 17 USC 201 the holder of the
  collective-work copyright is legally privileged to set the distribution
  terms for the package as a whole (in the statute, this expressed
  negatively as a statement that the collective-work copyright holder
  acquires only those rights).

  In an unpublished case, Campbell vs. Lavery, 1997 U.S. App. LEXIS 754
  (9th Circuit), the court's finding turned specifically whether a
  collaboration between two programmers was a collective or a joint work.
  The court observed that the project could have been found to be either a
  collective or a joint work, depending on the intent of the programmers.
  They found it to be a collective work based on the fact that (a) one
  party had written only twenty lines of code, and (b) the behavior of
  both parties showed no intent that they be regarded as coauthors.

  Campbell vs. Lavery is appellate case law indicating that
  collaboratively-written software is a collective rather than joint work
  when programmers function in identifiable author/contributor roles. An
  Albany Law Review article from the same year, A Narrow View of Creative
  Cooperation: The Current State of Joint Work Doctrine[1], shows that
  Campbell vs. Lavery is no fluke. They cite numerous cases showing that
  courts have historically relied on the intent-of-coauthorship test to
  distinguish joint works from collective works, and continue to do so
  today. For the work to be joint, all coathors must show an intention to
  regard and credit each other as coauthors.

  This is, of course, not the case in most open-source projects. Community
  practice recognizes a strong distinction between people who contribute
  patches and co-authors. Indeed, community practice agrees with the
  intent requirement  normally one becomes a co-author on a project after
  applying for that status and having it granted by the existing
  author(s), in recognition of major and continuing contributions to the
  project.

  In fact, if the rights structure of a large project even becomes an
  issue, a court might well find it to be joint work with respect to core
  contributors but a collective work with respect to patchers. But this
  would make little practical difference. When we wrote earlier that
  registering copyright on an ordinary patch is probably pointless, we
  meant that it wouldn't convey a right to block distribution under either
  the joint-work or collective-work theory.


[1] http://cyber.law.harvard.edu/metaschool/fisher/joint/links/articles/lape.html

-- 
"Zees American words are too much.      Zen our culture you'll wrench; 
With 'le parking' 'le weekend' & such.  Wiz our children we'll be out of touch."
Eef you anglicize French,                -- L'Academie Francaise in a nutshell