Who Owns the Copyright for An Open Source Project

Jan 26, 2006 oss legal licensing copyright suggest edit

This is part 3 in this series on copyright law and open source licensing. If you haven’t already, consider reading Part 1 and Part 2 of this series for background before tackling this topic.

To properly license open source source code, the license agreement must be included prominently with the source code. Many simply put a license.txt file in the root of the source tree and publish the license on their project website. Others take the extra step to include the license text in a comment within every source file.

Assigning Copyright

Take a look at the license for DotNetNuke (DNN), a very popular open source portal software for the .NET platform. In particular note the very first section:

DotNetNuke® - http://www.dotnetnuke.com
Copyright (c) 2002-2005
by Perpetual Motion Interactive Systems Inc. 
( http://www.perpetualmotion.ca )

Notice that Perpetual Motion Interactive Systems Inc. owns the copywrite to the DotNetNuke codebase. “How can that be? How can a corporation own the copyright to code that is open source?” you might ask. Don’t worry, there is nothing sinister going on here.

In part 1 of this series I stated that when you write code, you own the copyright to it (with a couple of exceptions such as work for hire). By default, when you contribute source code to an open source project, you are agreeing to license the code under the terms of that project, but you still retain the copyright.

In some cases, this is fine. But it makes it difficult for the project should they decide they want to relicense or dual-license the project as they have to get permission from every copyright holder. Or if there is need to enforce the copyright, the project would need every affected copyright holder to be involved.

What many projects do is require that contributors assign copyright to a single legal entity or person which then has the power to enforce the copyright without requiring everybody get involved. Keep in mind that although this person or entity then owns the copyright, the code has been released under a license that allows free distribution. Thus the fact that the copyright has been assigned to an individual entity does not make the code any less open.

For example, suppose Perpetual Motion decides they want to exercise their copyright and make a proprietary version of DotNetNuke. They certainly have the right to do so, but they cannot stop others from freely viewing and distributing the code under the pre-existing license up to the point at which they close the source. At that point, contributors would be free to fork the project and continue development under the original license as if nothing had occurred.

Copyright Assignment Policy

According to a lawyer Fogel talked with…

For most, simply getting an informal statement from a contributor on the public list is enough—something to the effect of “I hereby assign copyright in this code to the project, to be licensed under the same terms as the rest of the code.”

Is sufficient. Some organizations such as the Free Software Foundation, on the other hand, apply a very formal process requiring users to sign and mail in paperwork.

In any case, some open source projects do not have such a copyright assignment policy in place, but it makes sense to do so. As Fogel points out, should the terms of the copyright need to be defended, it is much easier for a single entity to do so rather than relying on the cooperation of the entire group of contributors, who may or may not be available.

Having the copyright assigned to a corporation also protects individual developers from exposure to liability in the case of a copyright infringement suit.

Public Domain

This section added in 2013/07/17

Another possibility that I did not originally cover is to have nobody own the copyright by dedicating a work to the public domain. This effectively surrenders any rights to the code and gives the code to the public to do with it as they wish.

In some regards, dedicating a work to the public domain is unusual. Typically, works in the public domain have had their copyright expired or were inapplicable (such as government works). As Wikipedia points out:

Few if any legal systems have a process for reliably donating works to the public domain. They may even prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights.

The Unlicense template is one approach to dedicating a work to the public domain while serving as a fallback “license” for legal systems that don’t recognize public domain. The CC0 license from Creative Commons is another such effort.

Found a typo or mistake in the post? suggest edit

Comments

12 responses

Joe Brinkman • January 25th, 2006
One thing that we learned on the DotNetNuke project, is that having a single copyright holder goes beyond just its effect on the code developers. When working with Web Hosting companies they expressed concerns with having multiple copyright holders for the project as it could lead to problems if some of the copyright holders choose to change their licensing terms. Ultimately there would not have been a single entity involved in the licensing of the product which could have potentially created problems for the users.

When using licensed components, it is easier for a project to insulate itself from the negative impacts of changing licenses, however, when code is threaded throughout a project, it is not so easy to rip-and-replace if the copyright holder changes to an incompatible license.

BTW, we follow the FSF model and require contributors to sign a legal document assigning copyrights to PMI. In the case of some modules, which are now DotNetNuke sponsored projects, we request a split copyright which allows DotNetNuke to continue to develop the contributed code under our license and copyright (even though the original module may continue to be developed and distributed under a separate license).
christopher baus • January 25th, 2006
There a different schools of thought on this. http://boost.org/ keeps copyrights assigned to the original author, but the author must agree to the boost license or the code can not distributed with boost.

This did become a problem when one of the contributors to boost.threads disappeared and could no longer be contacted, and the license couldn't be updated.
Haacked • January 25th, 2006
Thanks for the insight Jeff!

Chris, that's one of the main arguments for copyright assignment. If the project wanted to change its license OR if the project was sued, it may not be possible to contact and organize all copyright holders at that time.
Community Blogs • July 31st, 2006
I recently introduced an internal tool for writing Subversion Hooks that we developed for internal use
you've been HAACKED • April 3rd, 2007
There Are Only Four Software Licenses
Community Blogs • April 3rd, 2007
Jeff Atwood writes a great summary of Open Source Licenses . As far as I’m concerned, there’s really
Leo • November 2nd, 2013
Hi,

Articles like this are needed, so kudos for writing one. I have a question though; You write "By default, when you contribute source code to an open source project, you are agreeing to license the code under the terms of that project, but you still retain the copyright." - Can you provide resources/references on this statement? I have read a fair amount about this stuff in general but never found material that showed this being the case (copyright automatically being given to the project when you contribute).

Thanks!
haacked • November 4th, 2013
> copyright automatically being given to the project when you contribute

Copyright is never automatically given to the project when you contribute. That's not what I said. :)

What I said is that you are agreeing to license your code to everybody else under the terms of the project's license. Otherwise you wouldn't contribute to it.

However, under U.S. default copyright law, you still retain the copyright for that code unless you make it clear that you are assigning the copyright over to the project.

Some projects are very formal about this and would require you to sign a Contributor's license agreement. Others just ask you to send an email to them (or comment on your PR) that says you give them the copyright.

Still others are just fine with every contributor owning the copyright to their contribution. After all, the important part to them is that the contribution is licensed in such a way that everyone can use the code.
Leo • November 4th, 2013
I am so sorry for introducing confusion.

I did think/mean the *license*, i.e. what makes you say that code you contribute to an open source project is by default agreed to become licensed the same way as the project?

To clarify, it is "By default, when you contribute source code to an open source project, you are agreeing to license the code under the terms of that project" that I am referring to - I am wondering what sources/facts there are for this statement.

I have not read that before, and I am under the impression that unless you put a license on the code you give to someone else, it will be without a license. The fact that you hand that code to them won't change that, unless of course it is detailed in some terms of use or similar that you might have signed (e.g. GitHub, in case they have something about this in there).

Again, sorry for the confusion! :)
haacked • November 4th, 2013
Ah, I see. That's an interesting question. I'd argue it's an implicit contract. Why else would you contribute your code to the project? As a poison pill?

Also, when you contribute to a project, it's assumed you've accepted its license agreement since you had to look at its code in order to contribute to it.

Of course, there have been cases where someone contributed code they weren't allowed to contribute. For example, they're employer owned their time even and thus claimed ownership of the code.

This is why some companies go through the trouble of not only getting a CLA from the contributor, but also from their employer.

I'll think about this some more.
haacked • November 4th, 2013
One more thought. When you contribute a patch, you usually contribute it as part of the entire work, which is under an OSS license. So I think you could argue that therefore, your contribution back is under the OSS license.

Perhaps you could get around that by emailing your contribution as a patch without any of the original source code. But that is almost never done in real life.
John Stark • November 11th, 2017
So one can hold copyright over their piece of work, which may be put up on say github as public repo, and still have an open source license for the project ?? What I mean to say : "I have copyright on THIS work but YOU are FREE to distribute or produce derivative work from THIS work, as mentioned by open source license, but cannot use THIS work as it is" ? Something like Copyright + An open source license ?