FSF Drops Assignment Requirement for GCC

The Free Software Foundation announced on June 1, 2021 that it would no longer require and assignment of rights from contributors to GCC (GNU C Compiler) project. Instead, it will require a DCO (Developer Certificate of Origin), following the practice lead by the Linux Foundation for the kernel.

This move brings the GCC project into line with community practice, and it’s a welcome development. Over the years, various contributors had refused to agree to the FSF’s contribution assignment agreement, a document that is unusual in both substance and form. As to substance, while assignments for contributions were more common a couple of decades ago, today they are quite rare; most open source projects today either use license in=out (with or without a DCO), or a CLA with a non-exclusive license grant. As to form, the FSF’s assignment contains some truly unique language about patents* that patent licensing lawyers find perplexing, causing companies to balk at making contributions to FSF projects simply because they can’t parse the terms.

Given the widespread rejection by open source communities of CLAs, the FSF’s outlier stance on its contribution terms over the years has been surprising. Its premise that “Our ability to enforce the license on packages like GCC or GNU Emacs begins with a copyright assignment” was never exactly correct. It’s the kind of statement that looks good on paper, but doesn’t make so much sense in practice. It is true that only a copyright owner or exclusive licensee can enforce a copyright. See HyperQuest, Inc. v. N’Site Sols., Inc., 632 F.3d 377, 382 (7th Cir. 2011). But that’s because a court does not want to be asked by a plaintiff to enforce a copyright, when other parties, who are not before the court, have the right to grant licenses to the defendant and inoculate the defendant from the claim.

The FSF’s assignment document, like most (of the few) that are still used in open source contributions, grants a broad license back to the assignor. (“Thus, we grant back to contributors a license to use their work as they see fit. This means they are free to modify, share, and sublicense their own work under terms of their choice.”) So, the assignment does not solve the court’s problem. In effect, an assignment with a broad license back is less like an assignment, and more like a non-exclusive license (or like joint ownership, a structure universally detested by practicing IP lawyers, because it will often cause a court to refuse to hear the infringement claim).

In practice, owning most of the code is enough to bring a claim. Most open source enforcement takes place notwithstanding that one entity does not own every line of code in the code base. Assignments in CLAs, therefore, are not a best practice, because they are both discouraging to contributors, and not necessary to engage in enforcement.

This move should pave the way for more contributors to feel comfortable contributing to GCC.

*Note: The exact text of the FSF assignment document is not readily available online, though I have seen it before in my practice. If I find it, I will update this post and quote the odd patent language.

Author: heatherjmeeker

Technology licensing lawyer, drummer, dancer

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