A Theory of Joint Authorship for Free and Open Source Software Projects

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Citation: Pamela S Chestek (2017) A Theory of Joint Authorship for Free and Open Source Software Projects.

Download: https://ssrn.com/abstract=2999185



Describes concepts in US copyright law that could be pertinent to collaborative development with many authors (derivative and collective works, revisions, compilations, sole and joint authorship) and commonly accepted within free and open source software community idea that its works are serially derivative, with each contributor having interest in only their contributions.

Some US cases concerning movies (also with large numbers of contributors) might call into question whether many contributors to FOSS are copyright holders, or whether only "master minds" planning and making decisions about what to include are, possibly resulting in only single copyright holders for many projects even without extra contributor license agreements or copyright assignments.

Joint authorship is an alternative theory which author argues is plausible for FOSS projects, which have contributions that are "interdependent" (the other option for joint works are contributions that are "inseparable" such as two playwrights on one play).

Argues two potential problems with joint authorship for FOSS are not significant:

  1. Easy to avoid compliance by obtaining a lax terms from any author without the consent of others. But this is only in the absence of an agreement to the contrary, which is what a FOSS license is. An unfaithful joint author would be liable to other authors.
  2. All joint authors would have to be joined in a lawsuit, making enforcement impossible. When compliance is sought, the outcome does not change regardless of how many authors participate.

Further, joint authorship has advantages over serial derivatives:

  1. Discourages trolling, because gains have to be accounted for to and shared among joint authors, who also need to be notified of lawsuit.
  2. Compliance work may be easier, because any joint author could bring claim, not only if their specific contributions are infringed.
  3. Argument that a single author can revoke their license becomes even harder.
  4. Copyright registration may be easier and more timely.
  5. Extra contributor license agreements (CLAs) are less necessary.

Theoretical and practical relevance:

Quote: "A theory of joint ownership of free software projects changes very little in practice."

However, given very little caselaw on FOSS and the possibility that a bad decision could unsettle expectations, it is worth examining the foundations of FOSS licensing and the possibility that joint authorship may be an improvement.