Improving Legal Certainty in FOSS: Best Practices for Upstream Projects

Richard Fontana (Red Hat, Inc.)
Business, Emerging Topics, Legal
Location: Meeting Room B3
Average rating: ****.
(4.33, 3 ratings)

Free software/open source can be seen as a new kind of legal system,
allowing rights in code to be shared under rules that promote creative
expression, collaborative innovation, and wide dissemination of
knowledge. It follows that FOSS will benefit by achieving the
features of certainty that all well-functioning property rights
systems have. We should know who is giving us rights; we
should be reasonably confident that they have the authority to grant
those rights; we should know what those rights are; and we should have
some confidence that conflicts over rights can be resolved fairly.

My talk will largely accept the premise that FOSS benefits from greater certainty over rights. I will focus on best practices for FOSS projects seeking to improve “code provenance” and licensing certainty, particularly in their reuse of code from other projects. I will draw specifically on my experiences as a lawyer at Red Hat, particularly the work I have done with the Fedora Project. Some of the issues I will discuss include:

  • Why every source file should state copyright, authorship and licensing information, even if you took the file from another project that failed to do so
  • Why you should have a high barrier for code under unusual licenses
  • Why license compatibility really matters
  • Why you should (almost) always put the code you write under standard, widely-used licenses, and why you should document your interpretation of those licenses for your users
  • How to track down copyright and licensing information for code that doesn’t seem to have any
  • How to deal with the problem of legacy code involving long-lost authors and nonstandard licensing terms

My talk will conclude with a broader view by proposing some
longer-term solutions for improving certainty in the FOSS legal
system. I will briefly discuss three ideas:

  1. Developing an authoritative source of collected information on FOSS code copyright and authorship, analogous to a real estate title
    recording system
  1. Documenting the sets of customary interpretations and expectations held by particular license communities, to the particular benefit
    of downstream commercial users that are relatively unfamiliar with FOSS culture
  1. Addressing the issue of conflict resolution by establishing community institutions, outside the formal (official) legal system, for resolving licensing disputes impartially and efficiently, while also providing a kind of case law for FOSS
Photo of Richard Fontana

Richard Fontana

Red Hat, Inc.

Richard Fontana is Red Hat’s Open Source Licensing Counsel. At Red Hat he spends his time advising developers about copyright and patent issues, educating non-developers about free software and open source culture, and promoting open standards and intellectual property legal reform.

Before joining Red Hat, Fontana was an attorney at the Software Freedom Law Center, where his principal client was the Free Software Foundation. He was co-author, with Richard Stallman and Eben Moglen, of the GNU GPL, version 3.

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