Re: non-exclusive grant == no enforceability? (fwd)

[Brian Behlendorf <brian collab net>]

So I forwarded Kelly's comment on this topic to the apache.org board for
commentary, got this response from Roy, and thought I'd pass it back
here.  Roy asked me to relay that he doesn't have time to get involved in
a debate, as his dissertation is due in two weeks.  =)

Roy's last comment indicate something that perhaps was forgotten; what's
the state of a contribution when being checked into a gnome.org CVS
tree?  Is it at that point still (C) the individual, the Gnome
Foundation, an aggregate, etc?  That's different than the situation where
someone writes something in isolation and then donates it.

	Brian

---------- Forwarded message ----------
Date: Mon, 21 Aug 2000 22:31:56 -0700
From: Roy T. Fielding <fielding@kiwi.ICS.UCI.EDU>
Reply-To: board@apache.org
To: board@apache.org
Subject: Re: non-exclusive grant == no enforceability? 

>The problem with a non-exclusive license is that non-exclusive
>licensees have no legal right to sue on the copyright because they
>have no legally cognizable interest in the copyright itself.  An
>assignee or exclusive licensee does, the assignee as owner and the
>exclusive licensee as (in effect) a lessee.  

That depends on how you measure precedence.  The interpretation above
is based on the theory that only a complete owner or exclusive licensee
are capable of losing revenue as the result of an infringement, and
hence only those people could sue for infringement.  However, since we
already give our code away for free, we would never be able to sue
under that branch of copyright law in the first place.

Our suits, if they were ever to occur, would be based on misrepresentation
of our code as being owned by someone else.  We don't need to gather all
assignees together for such a suit, since it would be based on the copying
of one of our distributions, and the distribution itself is exclusively
owned by the ASF.

OTOH, GPL-based software may indeed have to worry about this, because
they use the forced-contribution model as a replacement for revenue.
That is, it can be argued that an infringer is denying them "revenue" in
the form of more GPL-covered code when they violate a GPL copyright.

*shrug*

Mind you, there is almost no precedence for this under copyright law
(because people who give content away aren't the kind of people who
like to hang out with lawyers).  There's not much point worrying about
it prvided that we maintain a record of where our code comes from, which
again points to the importance of accurately noting each and every CVS
commit.

....Roy