Subject: Re: Be and free software
From: shapj@us.ibm.com
Date: Tue, 23 Nov 1999 13:29:01 -0500

> Actually, in such a case the chip company does not have the copyright.
> The copyright remains with Cygnus or, given Cygnus's blanket copyright
> assignment on GNU code, with the FSF.  (Perhaps when the code reaches
> the FSF, the copyright is automatically transferred or something, not
> that it matters.)

Ian:

A client company X paying company Y to do the work can certainly agree to
the points you describe above.

In the absence of specific agreement to these points, the resulting
copyright is owned by the client company, not by company Y.  It is
therefore not possible for the resulting content to be covered under a
blanket copyright assignment.  The copyright assignment agreement can say
"any copyright held by company Y in relation to product P will be assigned
to FSF."  If Company X agrees that the copyright remains with company Y,
then (and ONLY then) the work may become subject to the copyright
assignment made between company Y and FSF. Otherwise, the code is not
blanket assigned; company Y cannot assign what it does not own.

In a prior discussion, I asked how it was possible for Cygnus to perform
enhancements under NDA given that the NDA prohibits further distribution
and therefore precludes distribution under GPL.  I suggested that the
transfer of code to the client company was a distribution of the prohibited
variety because of the NDA.  Michael Tiemann straightened me out: the
handoff of code to the customer is not a distribution.  It is a transfer of
property to its rightful owner.  In the absence of other contractual
provisions, only the owner has the IP rights to make a distribution, and in
this instance the owner is the client company.

My impression is that Cygnus is careful to write contracts so as to retain
copyright to the work it performs under contract.  Someone at Cygnus may
wish to confirm this, as it's been a long time since I've looked at one of
their contracts.


Please: I'm not casting aspersions at anyone. I'm only trying to make
explicit the workings of intellectual property law in the context of
contracting.


I'm not clear to me that the resulting code is "free", but this has nothing
to do with Cygnus's role in the relationship.  The problem that concerns me
is that the client company may never redistribute the code at all, but has
nonetheless obtained benefit from the work of the community. I don't feel
strongly enough about it in this case to worry much, but it does strike me
as undesirable.


Jonathan S. Shapiro, Ph. D.
Research Staff Member
IBM T.J. Watson Research Center
Email: shapj@us.ibm.com
Phone: +1 914 784 7085  (Tieline: 863)
Fax: +1 914 784 6576