geotools legal review
This page attempts to summarize the work being done to formalize the legal status of the Geotools library prior to acceptance as a formal project of the Open Source Geospatial Foundation. The page was started summer/fall 2007.
Geotools started as a personal computing project during doctoral studies at the University of Leeds. The initial effort was for Geotools to work as an applet in a browsers. The project subsequently received funding from several external sources. Around 1999, the project was released as free software under the GNU General Public License (GPL).
In 2002, the Geotools project restarted as "Geotools 2" abandoning the restriction of working only as an applet and aiming to be a generic Java library for the manipulation of geospatial data. This new effort started on an entirely new code base which was released using the GNU Lesser General Public License (LGPL).
In 2003, the project formally established a Project Management Committee with oversight over the project and subsequently many files were created or modified to attribute all copyright over the file to the Geotools PMC. Geotools has never formally established a tradition of authors adding their names to each and every file they modified but that information might be recoverable from the source code management system. Current code therefore contains an informal mix of copyright attribution, some to authors and some to the PMC.
In 2006, the PMC decided to transition the project to become a component of the Open Source Geospatial (OSGeo) Foundation. While the motivations were mixed, the strongest appeared to be the desire to gain formal legal status for the PMC by having it re-invent itself as a Project Steering Committee (PSC) of the OSGeo Foundation. Everyone has concluded that the existing PMC has no legal standing and therefore can neither hold the copyright to the library code nor represent the interests of contributors in any legal forum. The formal legal status obtained by forming a PSC within the OSGeo Foundation would shield contributors from lawsuits of licensees, and would enable OSGeo to bring suit to enforce the licensing terms of the code.
Among the steps required of a project to be accepted by the OSGeo foundation, projects must review:
- the origin of all the project materials,
- the copyright held on all the project materials,
- the license terms of all the project materials,
which jointly form the provenance review of the project files. The OSGeo Foundation will accept projects using a number of alternative strategies for their copyright and license terms but the foundation does require that the status be correctly documented. Projects joining OSGeo can:
- remain entirely legally independent,
- license their code to the foundation and have the foundation sub-license the code to all users, or
- formally assign copyright to the foundation and have the foundation sub-license the code to all users.
In the first approach, projects can decide for themselves how to handle their legal structure. The second approach was thought at the time to require a formal written statement from each contributor and the OSGeo published two "Contributor Licensing Agreements", one for individuals and one for institutions. Subsequently, the OSGeo board has decided that OSGeo can become a licensee without this formal documentation. The third approach requires a formal document assigning copyright to the foundation. For this, OSGeo eventually offered the "Project Copyright Assignment".
A core group of Geotools contributors and PMC members decided that the third strategy would be the best since it would have the added advantage of enabling the OSGeo Foundation to re-license the bulk of the code if this were ever required. These contributors and PMC members decided they would set out to individually assign copyright to the OSGeo Foundation and encourage many others to do the same and, thereby hopefully gain enough participation to cover the majority of the code, documenation and other project materials. One of the advantages seen of requiring written documentation from contributors would be to gain a formal acknowledgment of contributor intent which would help all contributors, licensees and sub-licensors demonstrate their full right to use, modify, and share the project materials. SINCE THIS DECISION THIS HAS BEEN THE ONLY STRATEGY OF THE GEOTOOLS COMMUNITY.
However, this strategy required a document through which an incoming OSGeo project could assign copyright to the foundation. At the time we started there was no such document but OSGeo eventually created a first document for this assignment.
This was seen as a good draft but was considered to suffer from a number of legal mistakes, oversights, and other issues which made it undesireable to sign:
- The document requires contributors to assign copyright but many would not be doing so: some contributors will be contributing on behalf of a third party such as the contributor's employer, others cannot legally assign copyright because they work for a government who will retain copyright (e.g. the Crown Copyright in commonwealth countries) but which fully permits the licensing of that work (e.g. much US government work is in the public domain).
- The document contains overly strict language over the origin of the contributions, "you alone created the contributions", which fails to account for the distributed nature of our work where the final contribution may contain patches from many other users.
- The document lacks project specificity covering contributions to "any OSGeo project" and so might be considered to prevent authors from working on multiple foundation projects which used different legal arrangements.
- The document was vague with regards to the responsibilities of the foundation in its use of the project's work, stating that OSGeo "may also make the Contributions available under other license terms."
- The document would not formalize the copyright grant of a hiring institution nor enable employees to document formally that their employers or contractors waived their copyright of those contributions.
- The document does not consider the situation where a contributor paricipates in a project both as an author for hire and as a volunteer
- The document contains incorrect legal language stating contributors grant "any other rights that may be referred to as "moral rights," "artist's rights," "droit moral," or the like." but those rights are actually exactly those rights which cannot be granted but are retained in perpetuity by the contributor.
- The document uses 'Intellectual Property' as a term even after three years of lectures by Richard Stallman about the lack of specificity and danger of that phrase.
- The document fails to consider the French legal system in which rights cannot be granted over future works: "you now or may in the future have".
Overall, then the document was seen as needing a fair amount of improvement to work correctly for the situation of the OSGeo Foundation, to consider correctly legal regimes outside the United States, and to respond to the legal needs of the free software community as those were understood in 2006.
Since the OSGeo originally did not have a document and when it offered the OSGeo "Project Copyright Assignment" this was seen as needing improvemnt, volunteers for Geotools took on the task of improving the document on behalf of the OSGeo foundation. At the time, the OSGeo foundation indicated it would be receptive to ameliorations of its document. Geotools was the first project to need the document and OSGeo works by volunteer labour so Geotools volunteers took this on. This process has taken over a year. In that time the Geotools volunteers have offered three documents.
The first document offered for consideration was bad and was therefore rejected with good reason. That draft will not be discussed further here.
The second document offered for discussion was based on the Free Software Foundation Europe's "Fiduciary License Agreement" which had emerged in the interim, developed by a committee of lawyers for exactly the purpose that OSGeo requires.
This was dismissed by the OSGeo lawyers, without formal review by the board, on the basis that OSGeo should not enter into any fiduciary responsibilities to anyone. Guessing that the board might follow that legal advice and seeing that the alternative draft provided by the lawyer was very far from the mark, Geotools volunteers re-drafted the document to explain, section by section, what each hopes to achieve, to provide suggested language, and to provide similar language from other sources. This most recent document is described below.
Through collaboration with Heather Meeker, acting lawyer for OSGeo, we developed GeotoolsAssignmentToOSGeo.pdf as a document to propose to the OSGeo board for approval.
In January 2008, the document was accepted by the OSGeo board and the core contributors of Geotools decided to use it to assign their copyright to the OSGeo foundation.
Beyond the document, there are some governance issues which remain:
- How will OSGeo handle institutions who waive their right to retain copyright and permit a contributor to add to an OSGeo project without formally granting OSGeo a copy or licensing right? Will we provide any example letter to Contributors so they can formally protect themselves?
- How will OSGeo handle legal regimes where rights can only be granted over past contributions? Will yearly renewal documents for both the license agreement and copyright assignment documents be prepared as well?
Geotools, once the OSGeo copyright assignment document is available, must undertake a few final steps to finish preparing for acceptance as an OSGeo project.
Contributors will have to be encouraged to sign the copyright assignment document or, for those who choose not to, asked to sign the Copyright licensing document. This will ensure that all contributors take on the formal legal responsibility to ensure their contributions are legally permissible and correctly documented. It is hoped that a scan of all the letters can be maintained in the code repository so all licensees can, on their own, document their rights to the use and re-licensing of the project's work.
Finally, the Geotools project files will undergo a final review to ascertain the provenance of the content and to correctly document the copyright, authorship and licensing of each file. The Gt_Headers_prototypes.text contains prototype code fragments for the headers and javadoc to describe alternative forms of documenting the provenance (origin), original copyright holders, current copyright holders, any licenses which apply to the file contents, and the LGPL v2 through which the Foundation will license the files to others. The project build system will also need to be reviewed to ensure all the files and licenses end up in the correct location.
Jan 22nd 2008