Ask Not Who Holds the Copyrights

David A. Wheeler

2011-10-10

Asking “who has the copyright?” for intellectual works (like software, documents, and data) is almost always the wrong question to ask. Instead, ask “what rights do I have (or can I get)?” and “do those rights let me do what I want to do?”. In a vast number of situations, those are the right questions to ask instead. Even people who should know better can fall into this subtle trap!

Here is my attempt to set the record straight.

Examples

For example, are you asking, “who holds the copyright on this Wikipedia article”? If so, you’re probably making a mistake. You probably just want to know “what may I do with the article?”. In that case, Wikipedia makes it very easy to find out what its license is, and what its terms are. In the case of Wikipedia, the license is the Creative Commons Attribution-ShareAlike (CC-BY-SA) 3.0 Unported License and also, unless otherwise noted, the GNU Free Documentation License. The Creative Commons licenses are especially common; if you don’t know what they say, now is the time to find out. Trying to find out who holds the copyright on a Wikipedia article is often an exercise in futility; often there are dozens of authors of an article, and it might be hard to contact them. In most cases, trying to get this information is an unnecessary hardship; just look at the license, which tells you what rights you have, and you are done.

Are you asking, “who holds the copyright on the Linux kernel”? If so, you’re almost certainly making a mistake. The Linux kernel has an absolutely massive number of authors. Instead, you probably just want to know “what may I do with it”, and they embed the license text that answers that question already. In the case of the Linux kernel, this is the GNU General Public License (GPL) version 2 (GPLv2). The GPL is a really common software license, so if you use software (we all do), read it so you can learn what your rights are.

Getting special permission (only when you need it)

Many times it is all somewhat obvious. Often you either have the rights you need, or you can can easily find out how to get the rights you need. You just need to look. If someone legitimately gives you a right (say through a license), or will legitimately sell that right to you, and those rights are all you need, then that’s that! The license might require payment (common for proprietary software). Free/libre/open source software (FLOSS) often doesn’t require payment, but the U.S. District Court found, in Jacobsen v. Katzer, that that FLOSS licenses were enforceable too (see the JMRI summary for more). Also, if you want to do something that clearly meets the legal exceptions to copyright protections, such as the US “fair use” exceptions or your country’s equivalent, the law already gives you those rights.

You should definitely ask permission if it is not clear you have a given right. Sure. But asking for permission to use a right that you clearly already have is a waste of everyone’s precious time, and can even harm our freedoms. If every author had to respond to millions of permission requests, just to include a brief attributed text quote, nothing else could get done. I get a little angry when people ask me for permission to do something when they clearly already have that permission; I don’t want to spend hours each day answering these absurd questions. In particular, we need to stand up for our fair use rights, or they will cease to be rights. The fantastic comic book Bound by Law, which explains copyright, also explains why using and defending fair use is so important. Yes, we live in a litigious society, so I understand why some organizations clear rights that they already have. In a few cases that might even be the most prudent move for you. But that needs to stop being the norm. If someone asks you for rights that they already have, or to sign something, ask them to pay for those “extra” rights (if you have the authority to do so); that will at least make a few people notice.

Even if you’re trying to get special permission to do something beyond what the license and intellectual rights law gives you, you need to find out “who can grant me those rights?” — and that is not at all the same question as “who holds the copyright?”:

  1. There might not be a copyright on the work. A work that has no copyright can be said to be in the “copyright public domain” (the term “public domain” has several other meanings, such as its meanings in export control law and in the intelligence community, so I’ll add “copyright” to make the meaning more precise). There are several ways this can happen:
  2. Even if there’s a copyright, the copyright holder might not be able to grant you those rights, e.g., perhaps the copyright holder has signed a contract that exclusively grants the rights you want to someone else.
  3. You might be able to get rights you want from someone other than the copyright holder. This can often happen through a contract, in fact, this is the default situation in US government contracts. My article ”Publicly Releasing Open Source Software Developed for the U.S. Government” (Journal of Software Technology aka Software Tech News, February 2011, Vol. 14, Number 1) shows that, by default, the US government receives “unlimited rights” in many contracts. The list of rights the government receives when it has “unlimited rights” is the same list of rights a copyright holder has (they’re even listed in the same order). In these cases, since the government has the same rights as a copyright holder, the government can release materials as if it were the copyright holder, under nearly whatever terms it pleases (including releasing as FLOSS). The US government spends billions of dollars each year developing software, so there is a lot of software in this circumstance.

Now, to find out who can give you those additional rights, it might sometimes be helpful to find out who the copyright holder is. But this can be tricky. Various organizations and people may have certain rights, without holding the copyright, even when you might think they would have the copyright (and vice versa):

  1. The copyright holder might not be the same as whoever distributes the material. For example, Wikipedia doesn’t hold the copyright for most of the works it distributes. In many cases, distributors of open content (like Wikipedia) and free/libre/open source software (FLOSS) are not the copyright holders. The distributor of proprietary software might not be the organization who actually holds the copyright, either; app stores typically do not have the copyright, for example.
  2. The work might have different parts, each of which has a different copyright holder. This is common in software; proprietary and FLOSS software is often built using other components whose copyright is held by others, so the supplier/vendor often doesn’t hold the copyright to all of the components they distribute or sell.
  3. The person who originally wrote the work might not be the copyright holder; if the person is an employee, the copyright is often held by the employer.
  4. The copyright holder in many cases might not be who you think it is. It is possible, and common, to transfer copyright. In the US, this requires a written signed agreement or an employer/employee relationship.

Again, beware. You’re normally trying to find out who can grant you certain rights, not find out who holds the copyright. The two are not the same.

Intellectual rights

A broader issue is that “rights” are not at all the same as “copyright”. There are a bunch of laws involving intellectual rights, including copyright, patent, trade secret, trademark, certification mark, trade dress, and government seal. In some countries (though not the US) there are “moral rights” too. Some people (including me) would also include export control and classification laws in that list. One shorthand term for the collection of all these laws is “intellectual rights laws” or simply “intellectual rights”.

I point this out because finding the copyright holder might not tell you what you need to know! Copyright might be insufficient for the rights you need, for example, you might need to use a trademark or patent. Again, you need to find out what rights you have (or can get), and then see if they are enough for what you want to do.

There is a big danger to shorthand terms like “intellectual rights” or “intellectual property rights” — they lump together too much. As pointed out by the FSF, “the term ‘intellectual property’ is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly. Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues... Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!... Even law professors who teach these laws are lured and distracted by the seductiveness of the term ‘intellectual property’ and make general statements that conflict with facts they know.” I think there is a need for a broad term, even with this caveat. The term “intellectual property” is so egregiously misleading, however, that it encourages people to reach absurd conclusions, so let me beat on that specifically.

I think one of the underlying reasons why people incorrectly ask about who holds the rights, instead of correctly asking about what rights they have (or can get), is that some people are still using the misleading term “intellectual property” instead of more-correct terms like “intellectual rights” (or “data rights”) and “intellectual works”. These misleading phrases make people think that intellectual works (like software and data) are like physical property, and they simply aren’t. They are fundamentally different, and the laws that govern them are different as well. I fear that people are trying to contravene the US Constitution, which expressly states that the exclusive rights of copyright and patent may only be granted for “limited Times”; Some seem to be using the misleading phrase “intellectual property” as an attempt to misleadingly re-frame the debate, as if thoughts and physical property were fundamentally the same, and thus eliminate (in practice) the notion of limited times. You’ll notice that I generally talk about “holding” or “having” copyright, not “owning” the copyright; this is a discussion about rights, so saying that someone owns a right can confuse people. People normally say that they hold or have a right (such as the right of free speech), instead of owning it. I’m sure many use the phrase “intellectual property” simply because others use it. But such a misleading frame can lead to wrong results. Even when dealing with (physical) property it’s often more important to focus on rights, not on who owns it. The obvious example is water rights; in many areas, it doesn’t matter who owns the land, what matters is who owns the water rights (and what they are). For intellectual works, this is even more true. Focusing on the rights, not on ownership, is usually what you should do.

Now it’s true that there are a few cases where it really does matter who the copyright holder is. In particular, in the US, only a copyright holder can sue for copyright infringement. But this is often less important than it seems. In most cases, potential users are not trying to sue, they’re trying to get something done. Even if you’re trying to enforce something, there are often other legal tools available. For example, you may be able to sue for breach of contract, and an infringer may lose any ability to enforce rights over the resulting work in U.S. court (due to the doctrine of unclean hands). If you are trying to determine if someone had the authority to release something with a claim of given rights, sometimes knowing who holds the copyright is helpful. But even in this case that is not the whole story; what matters is if the person had the right to do what they did, which is not the same as holding the copyright.

A widely-made mistake

Even very smart people and organizations fall into this trap. The Apache Software Foundation develops FLOSS, but this mistaken assumption even shows up in their forms, as revealed in the Accumulo Proposal. As explained in the related Slashdot article, “The National Security Agency has submitted a new database, Accumulo, to the Apache Foundation for incubation. Accumulo is based on the original BigTable paper with some extensions such as the ability to provide cell-level security. It appears there are some hurdles that must be cleared concerning copyright before the project could be accepted.” The basic problem in this case is that the Apache folks assumed that software is always copyrighted, and then required that copyright holders sign things. But since some code was written by government officials as part of their official duties, there is no copyright (in the US).

Similarly, the Free Software Foundation (FSF) requires copyright assignment for contributions, and as of 2011-10-09 their process makes no allowance for the situation where there is no copyright or that you might be authorized to submit changes without the copyright. To be fair, the FSF FAQ copyright assignment answer does note that putting something in the public domain is okay. However, even the FSF FAQ doesn’t acknowledge that holding the copyright is unnecessary for releasing something as OSS; you merely have to have the rights to do so (as the US government often does). If the FSF allows organizations to contribute works that are in the public domain, then it should also accept other works if the contributor has the rights to do contribute them with all the rights needed, because in both cases they get the rights they need.

Conclusion

In sum, you should normally ask “what rights do I have (or can I get)?” and “do those rights let me do what I want to do?”. All too often, asking “who has the copyright?” for intellectual works (like software and documents) is the wrong question to ask and is a waste of time. Almost everyone assumes, for example, that all software is copyrighted, or that only the copyright holder can release software as free/libre/open source software (FLOSS). Yet neither are true!

Hopefully now you’ll avoid wasting a lot of time, knowing the right questions to ask.

Disclaimer: This is not legal advice, and I am not your lawyer. In fact, I’m not anyone’s lawyer! I do have free speech rights, though. I use the logical (UK) quoting system, instead of the obsolete American quoting system, so the placement of quotation marks may be different from what you expected.


Feel free to see my home page at http://www.dwheeler.com. You might also want to look at my paper Why OSS/FS? Look at the Numbers! and my book on how to develop secure programs.

(C) Copyright 2011 David A. Wheeler.