Co-owners? [LWN.net]

Co-owners?

Posted Apr 14, 2011 14:19 UTC (Thu) by david.a.wheeler (subscriber, #72896)
In reply to: Project Harmony decloaks by wahern
Parent article: Project Harmony decloaks

I'm not a lawyer, but I can throw in my two cents.

I suspect that the Linux kernel is NOT an example of co-ownership in the legal sense. I think co-ownership means that multiple people JOINTLY hold the copyright to the same larger work. But that's not the case here. Copyright can only be assigned to someone else (including a group) by a written agreement, and there's no such agreement in this case. What's more, there are clear records of who contributed what, so at least in principle you can found out who contributed what (see "git blame", though obviously that is imperfect). Therefore, there is no co-ownership. So presumably the copyright for each patch continues to be held by the contributor.

So what we have is a bunch of separate works, the copyright of each is held by different people.

I think this is bolstered by Linus Torvald's statements over the years explaining why he does NOT want copyright assignments. Courts are supposed to examine the intent of the community, when there is one.

But I'm not a lawyer. I'd love to hear what a REAL lawyer would say.

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Co-owners?

Posted Apr 15, 2011 15:26 UTC (Fri) by butlerm (guest, #13312) [Link]

So what we have is a bunch of separate works, the copyright of each is held by different people.

That may be the case with regard to a module or driver written substantially by one contributor, but it isn't remotely sustainable with regard to unitary subsystems with hundreds of patches from many contributors. By any reasonable standard, for a work to be "collective" rather than "joint", each individual contribution must have some independent merit as a work in and of itself. See the definition of "joint work" in 17 USC 101.

The termination rights issue here is an interesting one, but it is worth noting that termination requires majority consent of those with termination interests in a work. This is unequivocally a good thing.

It means that several decades from now a contributor might be able to terminate a license to a contribution (such as a driver) that has independent merit, but would require tracking down and obtaining the consent of at least a majority of other contributors to terminate an interest in a portion of the total work that many have contributed to. See 17 USC 203(a)(1).