Original URL: http://www.theregister.co.uk/2007/12/05/sun_opends_defining_terms/

Winners and losers in Sun's OpenDS spat

Not sticking it to the man

By John K Waters

Posted in Software, 5th December 2007 01:27 GMT

The brouhaha (here and here) surrounding Sun Microsystems and ex-employee Neil Wilson over governance of the OpenDS project - first reported in The Register - continued to bubble this week, not least among Reg Dev's readers.

Many of you took the harsh, but arguably fair, point of view that Sun was in the right as work done during the employer's time belongs to, guess who, the employer. Others adopted the slightly provocative stance that open source developers are "chumps" because what they are really doing is unpaid open source development for companies like Sun that have the money to pay.

"Open source and for-profit companies have got an irreconcilable conflict of interests - you just end up as an unpaid proxy working for The Man who makes a profit from your efforts," according to one reader.

So is everyone getting ripped off here? What is the legal position, and who wins?

The goal of OpenDS is to build a free, open-source directory service. Wilson, who helped found OpenDS, claimed he and four other laid-off Sun employees who were also project committers were threatened by Sun into relinquishing governance of the project.

Sun claimed a change in governance of OpenDS had been improperly made months earlier, and that if left in place, would leave Sun, the project sponsor, with no say.

Both sides are throwing around a lot of terms, like "owner" and "copyright." We ran this past a couple of experts to define terms.

Bruce Perens, one of the founders of the Open Source Initiative (OSI), primary author of the Open Source Definition and a project lead for the Debian GNU/Linux, told Reg Dev that an open-source project's "owners" are the copyright holders. "If the developers are applying another sense of the term to the project, they are probably confused.

"They don't teach very much about copyright and business law in engineering school, so a lot of programmers are confused about it. If the developers brought the project to Sun from outside - if they were hired after they were already working on it or if they initiated it on their own time - they own some portion of it, or the whole thing. If they initiated it at Sun, and did the work on Sun's time, it would belong to Sun.

"Sometimes Sun persuades open source developers to assign their code to Sun in order to have it accepted into a project, which I don't generally believe is a good idea," Perens added.

Journalist and former paralegal Pamela Jones, creator and editor of legal news site Groklaw, said Wilson and his colleagues were actually "project leads". "A project lead is like Linus [Torvalds, creator of Linux], the guy who makes final decisions when needed. But he isn't necessarily the owner of the code's copyrights," she said.

So why the distinction?

"Because some decisions only a copyright owner can make," according to Jones. "For example, the Linux kernel can't go GPLV3 unless each and every author of the code in it agrees. But Linus, who owns some of the copyrights, can't make that decision by himself, because he doesn't own all of it. The law is pretty exacting."

As this was a Sun project, Jones said, the project leads couldn't make such a governance change without at least informing Sun, for whom they were writing code. "You can't just do a coup d'etat," she said. "And you can see why: The leads, as it happened, were all laid off. Now what? It aced Sun right out of its own project, if the little change in the wording were to stand. How fair is that?

Stepping back to tackle the simmering debate on the contradiction between employees of for-profit companies working on open source projects, Perens said: "Even if Sun is legally right, having full control lie with one corporation is not a good way to run an open source project.

"In general open source is only going to work if you let it be a community led project. Sun has had a hard time learning this, and some of their open source projects have had a hard time getting outside contributors, because Sun has insisted on owning the whole thing," Perens said.

"I think this is another case where community's ways and legal ways are not yet fully in sync," Jones added. "Kind of like trademark. Some in the community don't understand why it matters to protect a trademark or how one goes about doing so, and misunderstandings can result.

"On the other hand, Sun is in the midst of a massive change to openness, and there's an educational process going on there too."®