Improving Legal Certainty in FOSS: Best Practices for Upstream Projects

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