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A Theory of Joint Authorship for Free and Open Source Software Projects 1 A Theory of Joint Authorship for Free and Open Source Software Projects 1 A Theory of Joint Authorship For Free and Open Source Software Projects Pamela S. Chesteka (a) Principal, Chestek Legal DOI: 10.3366/ Abstract It is commonly believed that every contributor to a free and open source software project owns copyright in their incremental contribution to the project, and owns it solely. It is also commonly believed that one must avoid a legal conclusion that the project code is jointly authored—and therefore jointly owned—even though the legal concept of joint authorship is strongly consistent with the social construct of free software. This view is based on a belief that the application of the existing copyright law of joint authorship will undermine the intended operation of the free software license and thus fail to support the goals of the free software movement. This article takes the position that, under U.S. law, joint authorship is a legal framework for copyright ownership in a free and open source software project that presents no greater risk than those risks inherent in the concept of sequential ownership and may even be superior, providing some benefits that are not available under the current commonly-accepted theory of ownership. Keywords Law; information technology; Free and Open Source Software; copyright; authorship; joint authorship; derivative work; licensing; implied license DRAFT A Theory of Joint Authorship for Free and Open Source Software Projects 2 Introduction It seems to be a commonly-held belief that every contributor to a free and open source software 1 project (or their employer) owns the copyright in their incremental contribution to a project, and owns it solely. Upon examination however, this belief leads to some challenging questions under U.S. copyright law. For example, what is a "work," the fundamental increment of copyright—can it be only a few changes interspersed throughout a file? If there is no express license grant from the contributor for the inbound code, how can a user nevertheless be assured that every contributor has granted a license in their solely-owned copyright? How much code must one person have contributed to have standing to bring a claim for license non-compliance? It also seems to be commonly believed that one must avoid a theory that the project code is jointly authored and therefore jointly owned. While the legal concept of joint authorship is strongly consistent with the social construct of free software, nevertheless there is a belief that the application of the existing copyright law of joint authorship will undermine the intended operation of the free software license and thus fail to support the goals of the free software movement. U.S. law is evolving in a way that calls into question the settled assumptions about copyright ownership in free software. Projects may have to confront the possibility that a court might conclude that the code is not owned by the collective but instead by a single individual, making free software vulnerable to the whims of one individual or corporation. The purpose of this article is to examine joint authorship as an alternative. This article starts by outlining some relevant concepts of U.S. copyright law. It then examines the currently-held view that copyright in a free software project is owned by a series of sole owners and discusses the weaknesses of that theory in its application. The article then turns to an alternative theory of joint authorship and proposes that, contrary to common belief, joint authorship may provide a solid legal framework for copyright ownership in free and open source software. It further explains how joint ownership eliminates some of the problems that arise with the current theory, or at least presents no greater challenges than those that exist with the theory of sequential works. The author does not suggest that there is only one paradigm for ownership of copyright in free software projects. The question of ownership is fact-intensive and minor changes in fact may drive an entirely different outcome in every case. But no theory should be dismissed without critically examining its weaknesses and strengths. Basic Principles of Copyright Authorship in the United States There are only two types of authorship recognized in U.S. copyright law: sole authorship and joint 1 The author will use "free software," "open source software," and "free and open source software" interchangeably. DRAFT A Theory of Joint Authorship for Free and Open Source Software Projects 3 authorship.2 Copyright subsists in a "work" of authorship.3 Five types of works are mentioned in the Copyright Act, three expressly defined and two terms used but not defined. First is the fundamental increment of a copyright, a "work," which the Copyright Act does not expressly define.4 This author will not try to do so in this article—it is a vexing question, particularly in software.5 This article will instead assume for purposes of discussion that a "work" is the smallest increment of authorship in which a copyright can be enforced, 6 whatever that might be. In this paper the term "initial work" will be used for the the first work created by the first author. The next three categories of works, "derivative work,"7 "compilation" and "collective work," are expressly defined.8 A derivative work is [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound 2 17 U.S.C. § 201(a) (2012) ("Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work."); 17 U.S.C. § 101 (2012) (defining "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole"). A "work made for hire" is a statutory shift in who will be designated as the author when the work is created by an employee in the scope of the person's employment or, in certain circumstances, where the work was created by an independent contractor. See 17 U.S.C. § 101 (2012) (defining "work made for hire"). In a work made for hire, the employer or hiring party is deemed the author rather than the natural person. 17 U.S.C. § 201(b) (2012) ("In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title….") That entity has the status of original author, whether sole or joint. See infra text accompanying notes 21-25 discussing the second category of authorship of a work made for hire, the one outside of the employer/employee relationship. 3 17 U.S.C. § 102 (2012) ("Copyright protection subsists, in accordance with this title, in original works ...."). 4 17 U.S.C. § 101 (2012) (definitional section of the Copyright Act, failing to define "work"). Section 102 of the Copyright Act provides some parameters for a “work,” i.e., it must be “original,” it must include “authorship” (both concepts well defined in case law) and it must be fixed in any tangible medium of expression, but the section gives us no insight on the size or boundaries of this unit. 5 See Justin Hughes, Panel IV: Market Regulation And Innovation: Size Matters (or Should) In Copyright Law, 74 FORDHAM L. REV. 575 (2005), on the concept of “work.” 6 17 U.S.C. § 106 (2012) (describing exclusive rights of an author with respect to "works," e.g., "to reproduce the copyrighted work …."). 7 This article discusses "derivative works" as defined by the Copyright Act. This definition may be different from the meaning of "derivative work" as the term is used in the GNU GENERAL PUBLIC LICENSE VERSION 2 (June 1992), https://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html [hereinafter GPLv2] or when used colloquially in describing a modified version of open source software. See, e.g., HEATHER MEEKER, OPEN SOURCE FOR BUSINESS 101 (2015) (describing the use of "derivative work" in the GPLv2 to mean "infringing work"); VAN LINDBERG, INTELLECTUAL PROPERTY AND OPEN SOURCE 227-29 (2008) (describing how the author of the GPLv2, the Free Software Foundation, does not use "derivative work" in a way that is consistent with the Copyright Act); LAWRENCE ROSEN, OPEN SOURCE LICENSING 114-15 (2004) (explaining that the term "derivative work" in the GPLv2 can be construed to also encompass a collective work); V.K. Unni, Fifty Years of Open Source Movement: An Analysis Through the Prism of Copyright Law, 40 S. ILL. U.L.J. 271, 280 (2016) (using "derivative" colloquially to mean a modification). For further discussion on the meaning of "derivative work" in the context of the GPLv2, see Eben Moglen & Mishi Choudhary, Software Freedom Law Center Guide to GPL Compliance: 2nd Edition, SOFTWARE FREEDOM LAW CENTER (Oct. 31, 2014), https://www.softwarefreedom.org/resources/2014/SFLC-Guide_to_GPL_Compliance_2d_ed.html; Theresa Gue, Triggering Infection: Distribution and Derivative Works Under the GNU General Public License, 2012 U. Ill. J.L. Tech. & Pol'y 95 (2012); Michael F. Morgan, The Cathedral and the Bizarre: An Examination of the "Viral" Aspects of the GPL, 27 J. MARSHALL J. COMPUTER & INFO. L. 349 (2010); Lothar Determan, Dangerous Liaisons—Software Combinations as Derivative Works? Distribution, Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 BERKELEY TECH. L. J. 1421 (2006); Mikko Välimäki, GNU General Public License and the Distribution of Derivative Works, 2005 (1) J.
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