Which License Should I Use?

[Andrew Koenig]

Mike Meyer <[email protected]> writes:

If they have the rights to the code, they can sell it, under the GPL or
any license of their choosing. In addition, if you GPL it, your employer
will be able to sell it, just like anyone else.

If they have the rights to the code, you don't get to decide on the terms
under which it will be distributed (if at all) -- they do.

 

[Andrew Koenig]

I would have to talk to a lawyer to be sure, but right now, I think I
can argue that anything I do on my own time belongs to me. I'm
technically a consultant right now (even though I'm spending 40
hours/week with the one "client"). I can take on other clients, as
long as they don't directly compete. This means they're hiring my
expertise. If I bring my own tools, that's part of my expertise. I do
recall there was a clause in the contract that anything I did on their
time belonged to them. For my next client, I should definitely include
a clause about rereleasing open source changes.

Yup. If you're not an employee (that is, if you get a 1099 form rather than
a W-2 form from your client), then any work you do belongs to you *except*
for what you agree in writing belongs to them. So if you write code that's
not part of any deliverable, it's yours.

Of course, they might object to your using their facilities, or working on
their time, on stuff that isn't part of a deliverable. But that's a
separate problem entirely.

 

[Andrew Koenig]

You're in something of a gray area, but one that has seen a lot of
litigation. Although you are "technically" a consultant, you are
probably considered an employee with regards to the "work made for hire"
doctrine. You should probably have a chat with a lawyer soon (I am not
one! TINLA!).

I'm pretty sure that there was a change to the copyright laws a few years
ago (perhaps as part of the DMCA), that made it clear that you own
everything you produce, unless you're a W-2 employee or there is a written
agreement to the contrary.

 

[Robert Kern]

I'm pretty sure that there was a change to the copyright laws a few years
ago (perhaps as part of the DMCA), that made it clear that you own
everything you produce, unless you're a W-2 employee or there is a written
agreement to the contrary.

The US Copyright Office does not agree with you.

http://www.copyright.gov/circs/circ09.pdf

But you can read the text of the DMCA itself.

http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html

--
Robert Kern
(e-mail address removed)

"In the fields of hell where the grass grows high
Are the graves of dreams allowed to die."
-- Richard Harter

 

[Robert Kern]

Yup. If you're not an employee (that is, if you get a 1099 form rather than
a W-2 form from your client), then any work you do belongs to you *except*
for what you agree in writing belongs to them. So if you write code that's
not part of any deliverable, it's yours.

Please stop saying things that are demonstrably untrue and could get
people into legal trouble if they believed you.

--
Robert Kern
(e-mail address removed)

"In the fields of hell where the grass grows high
Are the graves of dreams allowed to die."
-- Richard Harter

 

[Mike Meyer]

I'm pretty sure that there was a change to the copyright laws a few years
ago (perhaps as part of the DMCA), that made it clear that you own
everything you produce, unless you're a W-2 employee or there is a written
agreement to the contrary.

Definitely not. The most recent change to the copyright laws made
works of music recorded to fullfill a contract "work for hire" by
default.

<mike

 

[Rocco Moretti]

Then probably the best licence to use is just to follow the lead of
Python. For that sort of small program of limited value, I put something
like this in the code:

Copyright (c) 2005 Steven D'Aprano.
Released under the same license as used by Python 2.3.2 itself.
See http://www.python.org/psf/license.html for details, and
http://www.python.org/2.3.2/license.html for the full text of the license.

Gaak! No! The Python license you point to contains horrible amounts of
cruft due to the ownership ping-pong game. (And just using the hyperlink
like you did leaves it vauge as to who is doing the liscensing - Steven
D'Aprano? the PSF? BeOpen? CNRI? Stichting Mathematisch Centrum?) As I
understand it, the PSF's official position is that the Python license
(even just the top most one) is not appropriate for any program besides
Python itself.

http://wiki.python.org/moin/PythonSoftwareFoundationLicenseFaq

Note that the Python license is not even appropriate for third party
code that's intended to be contributed to the Python standard library or
core!

If you want a "like Python" license, try the MIT or "new-BSD" license
instead:
http://www.opensource.org/licenses/mit-license.php
http://www.opensource.org/licenses/bsd-license.php

 

[Rocco Moretti]

I've been watching the flame war about licenses with some interest.
There are many motivations for those who participate in this sector, so
disagreements over licenses reflect those agendas.

One point that frequently gets ignored in licensing debates:

The value of a license is directly proportional to the amount of time,
effort, and money you are willing to spend enforcing it.

It doesn't matter how fancy the legal wording is - it is up to you, as
the copyright holder, to bring legal action against infringers (or at
least send a cease-and-desist letter). If you're not going to bother,
any and all clauses in the license, no matter how artfully crafted,
won't do you any (legal) good. People using your program are left acting
on the honor system. Which may be just fine - but you don't need a
fancy, legalistic license to accomplish that.

 

[Steve Holden]

Then probably the best licence to use is just to follow the lead of
Python. For that sort of small program of limited value, I put something
like this in the code:

Copyright (c) 2005 Steven D'Aprano.
Released under the same license as used by Python 2.3.2 itself.
See http://www.python.org/psf/license.html for details, and
http://www.python.org/2.3.2/license.html for the full text of the license.

I use that as a no-brainer licence: it is weaker than but compatible with
the GPL, and requires less documentation.

Not only is this inappropriate, it doesn't even license users to use
your software, it licenses them to use Python! The official advice of
the PSF is that the unmodified Python license should *not* (and, really,
can not) be used to license any other software.

regards
Steve

 

[Ben Finney]

One point that frequently gets ignored in licensing debates:

The value of a license is directly proportional to the amount of
time, effort, and money you are willing to spend enforcing it.

That's a very important factor, yes.

It doesn't matter how fancy the legal wording is - it is up to you,
as the copyright holder, to bring legal action

This is true as far as it goes. What is sought, though, is not "fancy
legal wording", but clarity of intent.

The wording is *extremely* important, since it must express, as
clearly and unambiguously as possible, the intent of the license
granter. Legal action and judicial interpretation will play their
part, but the clearer you can make the license text, the less
guesswork is needed on both sides to determine what is and is not
permitted in the license terms.

The GNU GPL, and the Expat license (née X11, MIT, 2-clause BSD, etc.),
are popular in part because the intent of their terms is expressed
very clearly.

 

[Steven D'Aprano]

Gaak! No! The Python license you point to contains horrible amounts of
cruft due to the ownership ping-pong game. (And just using the hyperlink
like you did leaves it vauge as to who is doing the liscensing - Steven
D'Aprano? the PSF? BeOpen? CNRI? Stichting Mathematisch Centrum?) As I
understand it, the PSF's official position is that the Python license
(even just the top most one) is not appropriate for any program besides
Python itself.

http://wiki.python.org/moin/PythonSoftwareFoundationLicenseFaq

Well, I've just learnt something. Thank you. I'll be having a long talk
with the experience Python developer who advised me to do that...

 

[Paul Rubin]

It's a draft, but it contains useful information. Also, Larry Rosen's
book _Open Source Licensing_ is quite helpful (and free!).

http://rosenlaw.com/oslbook.htm

That is the guy who claims it is impossible to release anything into
the public domain, other than by dying and then waiting 70 years. As
far as I can tell, and according to experts like L. Lessig, he is
wrong. When I wrote Mr. Rosen asking about it, he didn't answer. So
at this point I wouldn't believe anything he says.

http://cr.yp.to/publicdomain.html

 

[Paul Rubin]

I will be doing the bulk of the coding on my own time, because I need
to be able to take these tools with me when I change employers.
However, I'm sure that in the course of using these tools, I will need
to spend time on the job debugging or tweaking them. I do not want my
current employer to have any claim on my code in any way. Usually if
you program on company time, that makes what you do a "work for hire".
I can't contaminate my code like that.

Whether your employer has claim to stuff you do on your own time
depends intricately on the law in your state. California is much
different from New York, for example. The platitudes you hear in this
thread about it are pretty useless. "Employer" means something
specific: are you paid on W2's? If not, maybe you have a "client" or
"customer" rather than an "employer" and the entire picture is
different. When something is work for hire is also intricate. Just
because you're being paid by someone else to write something doesn't
always make it a work for hire, even if you're an employee. There are
no simple universal answers.

To get these questions answered you really have to consult a legal
adviser IN YOUR STATE. And you should explain at the very beginning
to your client/customer/employer what you're doing and what rights you
want to hold on to, and negotiate a written agreement. Don't take the
attitude of "in what ways can I make sure that surprises I spring on
the client get resolved in my favor if there's a dispute". Instead,
do everything you can to avoid disputes and surprises. That means get
the client need to agree in advance, in writing, to what happens with
what. Every agreement I've signed in the past few years has included
a release rights (from me to the employer) and a list of exceptions as
part of the boilerplate.

 

[Andrew Koenig]

Andrew Koenig wrote:

The US Copyright Office does not agree with you.

http://www.copyright.gov/circs/circ09.pdf

Well, it comes pretty close to agreeing with me--the only issue is whether
the definition of "employee" extends beyond the notion of "W-2 employee" and
that issue is not really relevant to the original posting.

Here's the relevant quote:

If a work is created by an employee, part 1 of the statutory definition
applies, and generally the work would be considered a work made for hire.
Important: The term "employee" here is not really the same as the common
understanding of the term; for copyright purposes, it means an employee
under the general common law of agency. This is explained in further detail
below. Please read about this at "Employer-Employee Relationship Under
Agency Law." If a work is created by an independent contractor (that is,
someone who is not an employee under the general common law of agency), then
the work is a specially ordered or commissioned work, and part 2 of the
statutory definition applies. Such a work can be a work made for hire only
if both of the following conditions are met: (1) it comes within one of the
nine categories of works listed in part 2 of the definition and (2) there is
a written agreement between the parties specifying that the work is a work
made for hire.



The reason I say that the distinction between W-2 employment and agency
employment isn't really relevant is that in the kind of situation we're
talking about, there is generally a written agreement specifying scope and
nature of work.



So I'll amend my statement slightly:



If someone pays you to produce a specific piece of work, or you're an
employee, any work you do for hire belongs to your employer. Otherwise,
it's yours unless there's a written agreement to the contrary.



I think that's a fair paraphrase of the paragraph I cited. If you disagree,
please say why.

 

[Andrew Koenig]

Definitely not. The most recent change to the copyright laws made
works of music recorded to fullfill a contract "work for hire" by
default.

If there's a contract -- i.e., a written agreement, then why does it matter?

 

[Paul Rubin]

If there's a contract -- i.e., a written agreement, then why does it matter?

Music recordings of that type couldn't be works for hire before. It
got quietly changed in a sneaky maneuver by a congressional staffer
who then became an RIAA lobbyist. I've heard the change got undone
sometime after it was noticed and there was a protest but I'm not sure
of specifics. See:

http://www.jdray.com/Daviews/courtney.html

 

[Robert Kern]

Well, it comes pretty close to agreeing with me--the only issue is whether
the definition of "employee" extends beyond the notion of "W-2 employee" and
that issue is not really relevant to the original posting.

Yes it is given that the OP is "technically" a contractor. But it does
flatly contradict what you wrote since it specifically states that there
are classes of "employee" for the "work made for hire" doctrine that go
beyond the "W-2 employee" definition. There was no such law that made
the distinction that you did.

Here's the relevant quote:

If a work is created by an employee, part 1 of the statutory definition
applies, and generally the work would be considered a work made for hire.
Important: The term "employee" here is not really the same as the common
understanding of the term; for copyright purposes, it means an employee
under the general common law of agency. This is explained in further detail
below. Please read about this at "Employer-Employee Relationship Under
Agency Law." If a work is created by an independent contractor (that is,
someone who is not an employee under the general common law of agency), then
the work is a specially ordered or commissioned work, and part 2 of the
statutory definition applies. Such a work can be a work made for hire only
if both of the following conditions are met: (1) it comes within one of the
nine categories of works listed in part 2 of the definition and (2) there is
a written agreement between the parties specifying that the work is a work
made for hire.

That's not the relevant quote. The relevant quote comes from the part
that "explain in further detail below" about the factors laid down in
Community for Creative Non-Violence v. Reid.

The reason I say that the distinction between W-2 employment and agency
employment isn't really relevant is that in the kind of situation we're
talking about, there is generally a written agreement specifying scope and
nature of work.

Stop guessing.

So I'll amend my statement slightly:

If someone pays you to produce a specific piece of work, or you're an
employee, any work you do for hire belongs to your employer. Otherwise,
it's yours unless there's a written agreement to the contrary.

You can't use the phrase you're trying to define in the definition.

I think that's a fair paraphrase of the paragraph I cited. If you disagree,
please say why.

I disagree because it's a complicated bit of law that can't be boiled
down to two sentences. There are lots of tests a judge might apply and
none of them are of the form, "if the conditions are such-and-such then
the work is made for hire, otherwise not." This is not a guessing game
for laymen. This is an area for lawyers.

If I have one bit of advice for anyone reading this thread, it is this:
Don't listen to schmucks on USENET when making legal decisions. Hire
yourself a competent schmuck.

--
Robert Kern
(e-mail address removed)

"In the fields of hell where the grass grows high
Are the graves of dreams allowed to die."
-- Richard Harter

 

[Robert Kern]

That is the guy who claims it is impossible to release anything into
the public domain, other than by dying and then waiting 70 years. As
far as I can tell, and according to experts like L. Lessig, he is
wrong.

Is that why the CC Public Domain Dedication has the subtitle
"Copyright-Only Dedication (based on United States law) or Public Domain
Certification"?

Lessig isn't sure. E.g. http://www.lessig.org/blog/archives/001066.shtml

When I wrote Mr. Rosen asking about it, he didn't answer.

He's a lawyer. Getting a legal opinion from him costs money.

So
at this point I wouldn't believe anything he says.

http://cr.yp.to/publicdomain.html

I amend my previous advice: Don't listen schmucks on USENET or the Web
when making legal decisions. Hire yourself a competent schmuck.

--
Robert Kern
(e-mail address removed)

"In the fields of hell where the grass grows high
Are the graves of dreams allowed to die."
-- Richard Harter

 

[Aahz]

Don't listen to schmucks on USENET when making legal decisions. Hire
yourself a competent schmuck.

Mind if I .sig this? How would you like to be attributed?

 

[Robert Kern]

Mind if I .sig this? How would you like to be attributed?

Please do. "USENET schmuck" is a sufficient attribution if you like,
though "Robert Kern" will work, too.

--
Robert Kern
(e-mail address removed)

"In the fields of hell where the grass grows high
Are the graves of dreams allowed to die."
-- Richard Harter