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When contributing to some of their projects, the FSF requires you to assign the copyright to your work to the FSF. As I'm German, I'm interested in whether this is compatible with German law.

German copyright laws states (§ 29 Urheberrechtsgesetz):

(1) Das Urheberrecht ist nicht übertragbar, es sei denn, es wird in Erfüllung einer Verfügung von Todes wegen oder an Miterben im Wege der Erbauseinandersetzung übertragen.

(2) Zulässig sind die Einräumung von Nutzungsrechten (§ 31), schuldrechtliche Einwilligungen und Vereinbarungen zu Verwertungsrechten sowie die in § 39 geregelten Rechtsgeschäfte über Urheberpersönlichkeitsrechte.

This roughly translates to:

(1) The copyright is nontransferable, except via inheritance.

(2) Concession of usage rights, agreements under the law of obligations, agreements to {utilization, exploitation}¹, and the legal transactions about personal copyright rights ruled by § 39 are permitted.

§ 39 is:

(1) Der Inhaber eines Nutzungsrechts darf das Werk, dessen Titel oder Urheberbezeichnung (§ 10 Abs. 1) nicht ändern, wenn nichts anderes vereinbart ist.

(2) Änderungen des Werkes und seines Titels, zu denen der Urheber seine Einwilligung nach Treu und Glauben nicht versagen kann, sind zulässig.

It roughly translates to:

(1) The bearer of a usage right may not modify the work, its title, or author's designation unless agreed upon differently.

(2) Modifications of the work and its title to which the author cannot deny agreement in good faith are permitted.

So you cannot give your copyright away whilst still alive. And even if you die, you can only give it to people you can bequest stuff to.

Given this situation, does the FSF not accept contributions by Germans? Does it apply any legal trick? Does it still require copyright assignments, hoping to be able to enforce them in different countries, even though the German contributors were not actually legally able to give their copyright away?

One legal dodge I came up with is to just not tell the court or the entities they sue who the original author is, just that they got their copyright. But this would likely not work as the court or the entity they sue could request the copyright assignment signed by the author which states their name, letting the defendant know the author's nationality.


¹ Idk how to translate this. It's a bit more than utilization. It's what media companies and publishers of books do with the songs, movies, or books they control.

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    The interesting part from §29 UhG is the “schuldrechtliche Einwilligungen […] zu Verwertungsrechten”, i.e. contractual agreements about usage rights. I cannot assign my copyright, but I can give an exclusive license. The excellent article cited by Philippe below explains that the recipient of an exclusive license does have standing to sue third parties for violations of the licensed rights. Btw great question, I was wondering about this problem myself. – amon Nov 12 '17 at 10:19
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    This is the reason the FSF Europe developed the Fiduciary Licence Agreement: It tries to align "copyright assignments" with European law. – Reinstate Monica - M. Schröder Nov 14 '17 at 12:40
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The article "Drafting Options for Contributor Agreements for Free and Open Source Software: Assignment, (Non)Exclusive Licence and Legal Consequences. A Comparative Analysis of German and US Law" specifically deals with this topic.

The point is that copyright licenses and usage right can still be licensed in Germany with effects essentially similar:

Instead of assignments, German law offers a number of ways an author or the owner of exclusive rights may authorize others to use and exploit a specific work: the granting of usage rights pursuant to s 31 of the Copyright Act and merely contractual agreements (see s 29 para 2 of the Copyright Act).

Beyond this I strongly encourage to read the full paper which covers the topic at great length.

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    Just out of curiosity, did you discover that paper just for this answer, or did you already know about it? I'm impressed! – apsillers Nov 13 '17 at 16:39
  • @apsilers I shall say that I truly impressed myself with my Google luck... I did not knew about it before I researched it for this answer and it is quite an impressive and well researched paper on this topic of German copyrights! The winning search was google.com/search?q=Open+source+CLA+and+germany and that was my first try. Pure luck, as I said! – Philippe Ombredanne Nov 13 '17 at 17:27

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