Re: Another job for the Gnome Foundation ?

[kelly poverty bloomington in us]

On Mon, 21 Aug 2000 17:28:56 -0700 (PDT), Brian Behlendorf <brian@collab.net> said:

>However, there is a difference between dual ownership and "joint"
>ownership, and I'm pretty sure we don't want joint ownership; dual
>ownership is simply that two entities have their own independent
>copyright on the code, joint implies that any copyright-related
>decision about the code needs to be made by both parties together.

This statement misrepresents the law.

The copyright law differentiates between joint authorship and
collective authorship based on whether the individual contribution of
multiple authors can be separately identified and partitioned.  Thus,
in a book where Author A wrote chapters 1-5 and Author B wrote
chapters 6-10 (called a "collective work" in copyright law), the
individual contributions can be identified, and thus the copyright
interest in the work as a whole can be partitioned in much the way an
interest in land might be partitioned.  In a "joint work", where the
individual contributions cannot be independently identified, the joint
authors are considered to own the entirety of the work jointly, under
the general legal principles of ownership in common, to the extent
they can be applied to intangible property, and the option of
partition is not available.

It is NEVER the case that joint owners of the copyright in a work
(whether or not their individual contributions can be identified) must
agree on copyright issues, with a single exception discussed below.
The law quite clearly holds that each joint owner has full dominion
over the work and may exercise that dominion (including granting
licenses for its use) without regard to the wishes of the other joint
author(s), and is liable to other owners only for a share of profits
realized from such activities.  There is case law on this point; I
read a case some years ago regarding a pair of university professors
who coauthored an article.  One of them decided that the article
should not be published.  The other disagreed and sought to publish
it.  The first sued to prevent the second from publishing, and lost.

The only limitation that joint ownership imposes is that a single
joint owner cannot effectively grant an exclusive license without the
consent of the other owners because an exclusive license combines the
grant of the incidents of ownership to the licensee with a promise
from the licensor that he or she will not independently exercise his
or her ownership rights.  A joint owner can make such a promise only
with respect to himself or herself and cannot bind the other joint
owners to the same.  The same problem arises in real estate when one
owner of property held jointly leases the property to a third party;
the third party is unable to exclude the other joint owners from the
property.  Since such exclusionary rights are part and parcel of an
exclusive license, it obviously takes the agreement of all owners of a
copyright interest to grant an exclusive license.

Kelly