February 12, 2007

FSFE's Fiduciary License Agreement is no panacea

Author: Bruce Byfield

This week FSF Europe (FSFE) announced the release of its Fiduciary License Agreement (FLA), a form of copyright assignment in which a free software project can place its collective copyright under the control of a single organization or trustee. The agreement is designed to reduce the problems in managing copyrights in large projects, and to reconcile differences in copyright worldwide. However, exactly how important, useful, or necessary the FLA is depends upon whom you talk to in the free software community. To some extent, FSFE even seems to be operating contrary to the advice of the original Free Software Foundation in the United States.

Shane M. Coughlan of the Freedom Task Force, a group within FSFE that offers license consultation and education, describes the FLA as "a solution for projects that wish to improve their copyright coherency." Coughlan explains that, as projects becomes large, "it becomes more difficult to manage the copyright. Some authors might vanish due to accidents, death, or other factors. When it comes to making decisions about protecting the code, upgrading license, or other legal factors, it can become important to talk with copyright holders." By vesting copyright in a single organization or trustee, projects can avoid issues such as those that have arisen with the Linux kernel, which -- aside from the preferences of programmers -- would have difficulty switching to the next version of the GNU General Public License (GPL) because of the fact that contributors retain their copyright and could be difficult to track down.

In some cases, this transfer of copyright is relatively straightforward. For example, in the GNU Project, contributors to sub-projects such as gcc routinely assign copyright to the GNU Project, and the copyright is registered in the United States, a jurisdiction which, like most English-speaking countries, allows for transfer of copyright.

However, as free software becomes more popular and more valuable, the situation becomes more difficult. In contrast to the Anglo-American copyright tradition, many jurisdictions, such as France and Germany, include a concept called authorship rights -- or moral rights, as they are sometimes called -- which cannot be transferred. These moral rights include some control over how the works are used; in a moral-rights jurisdiction, as the FSF's General Counsel Eben Moglen points out, Woody Allen might have successfully blocked the colorization of his black and white movies as being contrary to his intent. If a project has contributors from countries that recognize moral rights, or is first published in a country in which moral right copyright prevails, then transfer of copyright may not be valid.

So far, no such conflict in copyright assignment has happened. However, in the hopes of preventing such problems, the FLA attempts to reconcile the two different views of copyright. Under the FLA, contributors agree to give the trustee organization or individual exclusive rights to reproduce, redistribute, and modify their work "in original or modified form" and to authorize third parties to make derivative works. In other words, trustees are given permission to treat contributions according to the terms of a free license.

The FLA currently exists only in English. Coughlan says that the Freedom Task Force is considering official translations to make the FLA easier to use, but adds that "no formal decision has yet been made on this matter."

The agreement was originally the work of George C. F. Greve, the president of FSFE, who first wrote about the concept in 2002, and Axel Metzger, a German legal academic. Lucie Guibault, assistant professor at the Institute for Information Law in Amsterdam, also contributed to it.

According to Greve, "Legal maintainability [is] an important prerequisite for the long-term sustainability and commercial viability of free software. At the same time, too few projects were actually taking steps to ensure their legal maintainability. So we wrote the Fiduciary License Agreement to raise awareness for this issue and give people the tool with which they could increase the legal maintainability of their projects."

The devil in the details

From the FSFE's announcement, readers might easily conclude that the FLA is a new document. In fact, what is being announced is version 1.2 of the agreement. An earlier version of the FLA has already been used by the Bacula project to assign its collective copyright to FSFE in November 2006. Moreover, Eben Moglen, chair of the Software Freedom Law Center, describes the FLA as "a three-year-old legal implement that is now being released without substantial revision." Apparently, the news is not the agreement itself, but the fact that the FSFE plans to use it to become the legal guardian of free software projects. This interpretation is supported by Greve's comment that the creation of the Freedom Task Force was "a logical consequence" of his earlier concerns about the issues that the FLA is designed to addressed.

Moglen, who was consulted in the revision of the FLA, calls it "a useful piece of legal technology." He also states clearly that "I'm in favor of FSF Europe's Freedom Task Force as an outreach organization." At the same time, Moglen leaves no doubt that he is concerned about how the the FSFE is presenting the FLA and the potential for misunderstanding by the public.

To start with, Moglen says, "It's important to understand what [the FLA] is for. It is not a replacement for an end-user software license agreement like the GPL. It is not an agreement made to provide people a way of using software in freedom. It's a replacement for what in the United States we wouldn't think of as a license at all; we would think of it as an assignment of copyright."

Guibault is quoted in the news release as describing the FLA as having been "carefully formulated to meet the legal requirements of every country and it ensures that assignment or licence granted has the same scope irrespective of the country in which it is signed. This marks a clear step forward in copyright assignment and offers real benefit to the free software community."

In contrast, Moglen's opinion is that the FLA is "not a perfect solution to the problems of moral rights in free software." Moglen points out that no one has ever tried to uphold moral rights against free software, so the effectiveness of the FLA is uncertain. However, what is clear, Moglen stresses, is that the FLA "can't entirely oust the copyright laws of the jurisdiction where it operates." And, in fact, the text clearly states that "moral or personal rights remain unaffected by this Agreement." Despite Guibault's statement, exactly how effective the FLA would be against a moral rights claim is currently unknown -- "which is one of the reasons why I don't want to see it hyped as a perfect way for dealing with any problem," Moglen adds.

Similarly, the FSFE release seems to imply that the issue is not whether to use the FLA, but only to whom copyright should be transferred. Again, Moglen raises a dissenting voice, suggesting instead that the decision about whether to use the FLA needs to be considered in terms of the copyright jurisdictions in which the project operates and, even more importantly, of the project's goals.

Comparing the experiences of the GNU Project and the Linux kernel, Moglen notes that, by insisting on assignment of copyright, the GNU Project may have discouraged some programmers from contributing. By contrast, Linus Torvalds's choice not to ask contributors to reassign copyright may have encouraged participation and certainly reduced paperwork. Similarly, reassignment of copyright tends to centralize decision-making in a project, which may be contrary to the project's philosophy. Smaller projects may even want to ignore the issues surrounding the FLA altogether; Moglen suggests that it is mainly the marketplace value of larger projects that makes their legal situation of pressing concern. He also suggests that the FLA is only one of many possible templates "to help project [members] get what they want out of their composite life together," and not something that all projects should necessarily consider.

However, Moglen's greatest concern is "my impression that the Freedom Task Force of FSF Europe, which is not led by any lawyers and which does not have any lawyers, may begin to promote [the FLA] as a do-it-yourself legal technology -- and it isn't."

In fact, the Freedom Task Force does come close to the position that Moglen is concerned about. Asked to comment about Moglen's position, Coughlan acknowledges that "if people need legal advice they should consult a lawyer." However, in the next sentence, he says, "If people are confident that they already know what they require" then they have the option of using the FLA. Coughlan then goes on to emphasize that the agreement was not made by "a programmer drafting an arbitrary set of terms" but "evolved under the watchful eye of several legal experts."

The trouble with this view, Moglen insists, is that "you pretty much need to be a lawyer to know when to use it." While this comment might be dismissed as a lawyer's natural bias in favor of his own expertise, Moglen explains that, by making a legal decision without consultation, projects miss out on a potentially useful experience.

"The rule that says you don't operate on your own body isn't just a result of the fact that you haven't been to medical school," Moglen says. "Even if you have been to medical school, self-surgery is a bad idea. What happens in the counseling relationship between lawyers and clients is that thinking gets clarified. And so the tools we have are ones intended to help us think through issues with clients, not just to get something done." Although he supports the general aims of the Freedom Task Force, Moglen says, "I don't want it handing out stethoscopes and telling people to listen to their own hearts to see if they're dying yet."

Making a choice

Nobody wants a rift in the leadership of the free software community. Those contacted by Linux.com were noticeably careful to frame their opposition in polite terms. But where does the difference in opinion leave project members wondering whether they should adopt the FLA?

Opinions will differ, not least of all because many of the members of the community have an instinctive distrust of lawyers -- even one of such proven trustworthiness as Moglen. However, Moglen's caution sounds like the voice of experience, especially in contrast to the unqualified enthusiasm of members of FSFE. Assignment of copyright is a large and time-consuming step, so in many cases it should not be rushed into -- especially since, as Moglen points out, because it introduces a degree of control that can permanently alter relationships within a project.

The FLA may very well be a tool that the community needs to address particular problems, but, once used, it may be difficult to revoke. Under these circumstances, Moglen seems right: it is only sensible to discuss the implications with both project members and its legal advisors before using it. That way, members can avoid results they can't live with, and if, after discussion, a project does choose to adopt the FLA, its members can at least be sure that they are doing what's right for them.

Bruce Byfield is a computer journalist who writes regularly for NewsForge, Linux.com, and IT Manager's Journal.

Category:

  • Legal