Some thoughts on onwership relationships and remedies from OZ - This relationship of ownership could be one that arises in equity as well as copyright - the "custodians" (or at least the project coordinator) have a fiduciary obligation to others in the group - upon breach of the GPL where a person makes a derivative work and benefits form it commercially without returning the source code to the community one could argue that equity arises because breach of the contract has resulted in little economic loss - specific performance would be a better solution where the breaching entity is forced to reveal source code and return it to the community. Equity developed specific performance as "a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties' rights are settled and defined in the manner intended." (J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 at 297).
A further remedy could then be to enforce an account for profits by the breaching party under copyright law. (Copyright Act Cth 1968 S115 (2) Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.) It is not difficult to imagine a scenario arising where a commercial developer may be tempted to incorporate large sections of open source free code into their code and sell the resultant product while not releasing the modified code to the copyleft community, contrary to GPL. In such a scenario an account for profits is the best remedy for a group with limited resources - the plaintiff is not required to have suffered a loss and, if successful, can reap large rewards from an action against a defendant with deep pockets. (Peter Hastie, "Restitution and Remedy in Intellectual Property Law," (1996) 14 Aust Bar Review No 1) But this statutory remedy misses the whole point of the fee software movement. It is not motivated by money but by innovation and consequent access to the source code. In the free community, 'consideration' is the effort and time put into development of the program and any egoboo that results from its acceptance in the community. A breach is not an act that causes detriment 'in personam' - the commercial developer has acted against the values of a community. There is authority to show that, at least by analogy, equity could allow such specific performance. Multiple developers could be joined in an action or the open community or communities who have overseen the development could effectively represent the interests of such distributed developers. Critically, the organiser of such a community may be seen to have a fiduciary duty to their members as Bulun Bulun was seen to have to his tribe when he coded the dreams of the Ganalbingu people in an artistic fashion. (John Bulun Bulun v R & T Textiles Pty Ltd [1998] 1082 FCA per Doussa J [www.austlii.edu.au] 23/08/01): "The conclusion that in all the circumstances Bulun Bulun owes fiduciary obligations to the Ganalbingu people does not treat the law and custom of the Ganalbingu people as part of the Australian legal system. Rather, it treats the law and custom of the Ganalbingu people as part of the factual matrix which characterises the relationship as one of mutual trust and confidence. It is that relationship which the Australian legal system recognises as giving rise to the fiduciary relationship, and to the obligations which arise out of it." Aren't code writers the interpreters of our dreams in the digital world? The leader of the community could be the equitable owner of the copyright in the code made by the collective. The organiser's fiduciary role would then be to seek specific performance of any breach for, and on behalf of, the community who have given him or her their trust and confidence as part of the factual matrix in the development of the code. Graham Bassett __________________________________________________________________________ Converging law, information technology and education to foster an autonomous cyberspace __________________________________________________________________________ Graham Bassett BA, DipEd, MInfoTech, LLB (Hons) PO Box 1565 Byron Bay NSW 2481 Australia Tel. 0414986158 [EMAIL PROTECTED] http://members.ozemail.com.au/~bassett/ ----- Original Message ----- From: "Richard Stallman" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Cc: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> Sent: Friday, October 25, 2002 8:02 PM Subject: Re: Copyright > It's called the GPL because it assigns certain rights to everyone, not because > it makes everyone (or some abstract entity called "the general public") > the owner. > > Legally, a GPL-covered work is copyrighted and has certain copyright > holders. For certain purposes, it makes a difference who they are. > For instance, they alone have legal standing to enforce the GPL (in US > law, at least). Since copyright holders are also called "owers", > these persons are legally the owners of the work. > > However, in the GNU Project we see ourselves ethically not as owners > of something we can use at our pleasure, but as custodians of the work > on behalf of the public. In spirit, the public should be the owner, > but since copyright law doesn't work that way, the public is not > legally the owner. > > Credit is a different matter--we're all in favor of giving credit > to people who advance knowledge. > > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
