Subject: Re: OpenSales -- DRAFT developers agreement
From: kmself@ix.netcom.com
Date: Thu, 31 Aug 2000 14:50:47 -0700
Thu, 31 Aug 2000 14:50:47 -0700
On Thu, Aug 31, 2000 at 11:16:56AM -0700, Lawrence E. Rosen wrote:
> I've read through your DRAFT developers agreement.
> 
> One of the basic rules of contract law is that there must be
> "consideration" for every contract.  Yet your agreement expressly states
> that "You do not want to receive any compensation, at any time, for any
> reason from OpenSales or anyone else for your Contributed Code."  If the
> Contributed Code is a gift, it can be revoked at any time for any
> reason.  How do you intend to get around that?
> 
> The statement that "OpenSales Has The Right To Enforce The GNU GPL For
> Your Contributed Code" won't work.  Under the copyright law, only the
> copyright owner or owner of an exclusive right has the standing to
> enforce a copyright.  That is probably why the FSF requires copyright
> assignment.

I was remembering a clause I'd through was part of the Mozilla PL, it
was actually part of the original "OpenMerchant Community Source
License".  Though we adopted the GPL, there were some interesting and
IMO rather good aspects to this license. 

    1.6     Licensees Rights to Enforce.  You may have the right to
    enforce the obligations of Other Licensees under the License, and
    the Original Developer hereby grants You that right as part of the
    License, subject to the limitation that the Original Developer may
    not be made a party to any suit brought by You in that regard and
    that Your right to enforce this License will not include any
    circumstance where the Original Developer is a necessary or
    indispensable party or is otherwise required to be a party to an
    action or other proceeding.

It's language I somewhat like -- it provides independent developers with
additional rights and powers, strengthens (IMO) the enforcement of the
license.  If the right is one of the owner, can it *not* be assigned
(exclusively or nonexclusively) to another party?

The relevant language appears to be 17 USC 501(b):

    (b) The legal or beneficial owner of an exclusive right under a
    copyright is entitled, subject to the requirements of section 411,
    to institute an action for any infringement of that particular right
    committed while he or she is the owner of it. The court may require
    such owner to serve written notice of the action with a copy of the
    complaint upon any person shown, by the records of the Copyright
    Office or otherwise, to have or claim an interest in the copyright,
    and shall require that such notice be served upon any person whose
    interest is likely to be affected by a decision in the case. The
    court may require the joinder, and shall permit the intervention, of
    any person having or claiming an interest in the copyright. 

http://www4.law.cornell.edu/uscode/17/501.text.html


> If a contributor grants you a license to his Contributed Code under the
> GPL, then you have the right to use that code as part of a derivative
> work including your own code, as long as your Larger Work is also
> licensed under the GPL.  Why isn't that sufficient?

This is a crux question:  is the GPL in and of itself sufficient
protection to both contributors and code maintainers, including in the
instance of a corporate code maintainer, or isn't it:

    To be sufficient, or not to be sufficient.  That is the GPL
    question.

I'm going to try not injecting my own biases into the discussion at this
point, though the question is indeed key.

-- 
Karsten M. Self <kmself@ix.netcom.com>     http://www.netcom.com/~kmself
 Evangelist, Opensales, Inc.                    http://www.opensales.org
  What part of "Gestalt" don't you understand?   Debian GNU/Linux rocks!
   http://gestalt-system.sourceforge.net/    K5: http://www.kuro5hin.org
GPG fingerprint: F932 8B25 5FDD 2528 D595 DC61 3847 889F 55F2 B9B0


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