2

I believe context is important, so here is a little story.

Let's imagine (all characters and events in this story - even those based on real people - are entirely fictional) that Alice has developed a software, 'Sierra' - starting from a preexisting educational code - during her PhD, and has subsequently used it and developed it during her academic career. 'Sierra' is software for base scientific research with little or no purpose outside academia, and many people who worked with Alice over the years have contributed to it in some way. The code was never made public.

Unfortunately, Alice dies prematurely, and the last 3 people working with her - Beth, Charlie, Dave - decide that the best way forward is to release the whole thing as open source. Other previous collaborators and contributors agree, and they get the permission from the author of the educational software which 'Sierra' was based upon (the closest person to an owner of the code after Alice) who agrees , but does not want to be further involved.

Dave, who is still employed on the last active project of Alice, sets about to tidy, debug and test the code, so that it is in a state where it can be made public. For reasons not entirely clear, things go south: Dave rebuffs all offers of help and suggestions from Beth and Charlie and eventually releases 'Sierra' under EUPL license. Because of Dave's unwillingness to collaborate, Beth and Charlie decide to fork the project.

The question is: can Beth and Charlie change the license of their fork from EUPL to, for example, GPL2? The reasons are:

  1. The EUPL is designed with compatibility with EU law in mind and, while this is not a problem per se, it is also not relevant for scientific software which is not tied to the EU and is by design international in scope and objectives.

  2. Dave has chosen the license without consulting with any of the other previous contributors. It is true that he has done a lot of work on the code, but surely that doesn't transfer ownership to him, enabling him to take this decision by himself. In addition, the choice of the license seems to be at least in part motivated by political reasons, which is inappropriate.

  3. 'Sierra' works with a customized version of another software which is under GPL2. The two licenses are compatible, but it simply makes sense to distribute both programs with the same license.

This is not just a question of relicensing, and whether one licence allows conversion to the other. Even if that is not the case, there is also the question of whether the original choice was in fact legitimate (hence the story above) and therefore whether the change can be done regardless.

EDIT:

Dave was in charge of preparing the official release and he did major updates and changes to the code, so he has some IP claim. However, there were several other contributors (besides Alice) before him, and it was implied that the release of 'Sierra' would be made in agreement with Beth and Charlie.

The author of the original educational code approved the EUPL (he was the only person consulted by Dave), but since he is not interested in being involved, he would likely be fine with whatever is decided by Dave, Beth and Charlie. Given the purely scientific nature of the software, the legal heirs of Alice are very unlikely to have an opinion.

I think it boils down to two options:

  1. Dave had the right to unilaterally pick a license (with the only approval of the author of the original educational code). If so can the license of the forked project be changed from EUPL to GPL?

  2. Dave did not have the right to choose a license without consulting other former contributors. In which case, can Beth and Charlie do whatever they want with their fork?

  • 1
    Not sure we can decide. It's up to a court to decide when any of the people involved becomes sufficiently unhappy – planetmaker Feb 28 at 21:58
  • Alice's heirs would have a say... – vonbrand Feb 28 at 22:22
  • Dave presumably was in no position to distribute the code, even less slap a license on it. – vonbrand Feb 28 at 22:24
5

Ah, the joys of licensing lacking salience during academic code development.

Alice has developed a software, 'Sierra' - starting from a preexisting educational code

The first question is the licensing status of the code Alice imported. If that was under a copyleft licence, everything that followed may have to be distributed under a similar licence, or not at all.

Alice has developed a software ... during her PhD ... Beth, Charlie, Dave - decide that the best way forward is to release the whole thing as open source.

Alice, Beth, Charlie and Dave all work for this university. Many universities have policy about who is the rightsholder in code created as part of paid academic endeavour. If it turns out that the university holds the rights in this code, then what Alice, Beth, Charlie, and Dave agree is not very important compared to what the university wants. If it turns out Alice retained the rights in her work, then her executors will need to be consulted.

Other previous collaborators and contributors agree

Say what? There are other contributors, and their contributions were not made under a clear CLA/CTA?

So this is basically a mess. First of all, the licence under which Alice acquired the original code will inform any subsequent licensing decisions as to the terms under which the current codebase will be distributed. Then the rightsholders in the current code, including previous collaborators and contributors, must agree to distribute Sierra under those terms. If you can get that all lined up, you have a chance of being able to get this codebase ready for release as-is, with a clear licence. Then, and only then, can "Beth and Charlie decide to fork the project", assuming the rightsholder in their contributions agrees.

Dave almost certainly has no right to distribute the codebase under EUPL, and can be ignored.

Most likely, this codebase is now so entangled that it can never be cleanly released. This is why it is vital to sort out rights and licensing from the very beginning of development, in this case, the minute Alice downloaded someone else's code, and started to hack on it.

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  • 1
    It is even more messy. The original educational code does not have a license, as it was never meant to be released publicly, only to be used for student projects. Alice worked for 4-5 different institutions over the years, in at least 3 different countries, and had several collaborators, some of which moved on and don't care. It is partly due to the problems of sorting all this out, that she never released the code or bothered to set rules about contributions. – rs028 Mar 1 at 12:13
  • I do not think you will ever get this code into a proper state for release. Sorry. – MadHatter Mar 1 at 12:28
  • the thing is, it has been released as Dave put it on GitHub. – rs028 Mar 1 at 20:06
  • That's why I said proper state. Any idiot can release something, but doing it in such a way that people can be confident in the provenance, in their rights to pick bits up and reuse them according to the licence, that's a different matter. All it takes is Beth or Charlie (or their employer) to assert their rights in the code, and the DMCA takedown wars start. – MadHatter Mar 1 at 20:08

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