Ownership, governance and intellectual property in Fedora
by Benjamin J. Birkinbine:
"Red Hat, Inc. exercises ultimate control of the Fedora Project. However, the Fedora Project Council leads the Fedora Project. The Council is comprised of six members with full voting powers: two members appointed by the community for engineering and outreach, two members elected by the community, and two members who are employees of Red Hat and are appointed by the company. The Council may also have two to four additional community members at any given time who are appointed to take the lead on specific project objectives. These members are considered auxiliary Council members with binding votes only in the areas specified by their appointment. In addition, the Council also has two additional auxiliary seats: the Diversity Advisor, who is appointed by the Council, and the Fedora Program Manager, who is appointed by Red Hat with the approval of the Council.
While the governance structure of the Fedora Project has changed over time, perhaps the most interesting factors in this structure pertain to the members appointed by Red Hat: the Fedora Project Leader and the Fedora Community Action and Impact Coordinator. The Fedora Project Leader serves as Chair of the Council, while the Action and Impact Coordinator is responsible for coordinating decision making with budgetary concerns.
Previously, the Project Leader was also given veto power over any decision made by the Fedora Project Board, but now all voting members can block decisions “with a valid reason” (The Fedora Project, 2016). However, the Project Leader does have “a limited power to ‘unstick’ things if consensus genuinely can’t be reached and a decision needs to be made” (The Fedora Project, 2016). The language used here is vague, but it does suggest that the Fedora Project Leader may still maintain ultimate control over the project, although he or she would presumably expend considerable political capital in making decisions that conflicted with the interests of the community.
Thus, the governance structure of the Fedora Project operates as an intermediary between Red Hat and the FLOSS community that contributes to the Fedora Project. Red Hat supports the community by sponsoring the project and directing funds to Fedora through one of its appointed employees, but it then uses the work performed by the community in its commercial offering, Red Hat Enterprise Linux. The reason Red Hat is able to appropriate the labour performed within the community is because all contributors to the Fedora Project have signed a contributor’s agreement. These agreements have changed throughout the history of the Fedora Project, but all have similar effects. Originally, contributors needed to sign the Individual Contributor Licensing Agreement (ICLA), which effectively assigned the contributors’ copyright to the Fedora Project. However, the ICLA was later abandoned in favour of the Fedora Project Contributor Agreement (FPCA), which no longer assigned copyright to Red Hat, but specified the types of licenses that could be included in the Fedora Project. This shift made it possible for code that had already been licensed under a previous licensing scheme to be included in the Fedora Project, as long as the licenses were compatible with the guidelines established by Fedora.
Both the ICLA and the FPCA provide the mechanism that allows Red Hat to commercially exploit the labour that occurs within the commons-based peer production of free software projects. In this sense, the agreements allow Red Hat to incorporate these projects into its corporate offerings by having the right to use these projects transferred to the company. In the case of the ICLA, it provided a direct assignment of a contributor’s copyright to Red Hat, whereas the FPCA does not necessarily assign copyright to Red Hat. In this sense, the FPCA can be viewed as less restrictive because it allows contributors to assign licenses to their work prior to submitting the work to the Fedora Project. However, those licenses must be compatible with the goals of the Fedora Project, and the Fedora Project wiki maintains a Software License List that identifies the acceptable and unacceptable licenses that can be included in Fedora. Importantly, Red Hat does this because it becomes legally responsible for the products that it offers to customers.. In the event that content other than code is included in the submission (text, images, logos, etc.), the contributor must waive his or her moral rights to the content. This ensures that Red Hat will not be subject to infringement claims. In effect, these licensing agreements provide a way for Red Hat to control what is included in the commons-based project (Fedora) so that when that material is included in their commercial offering (Red Hat Enterprise Linux or other software), the company will not be subject to intellectual property infringement claims by the contributors.
By taking these preventative measures to control what is included in Fedora, Red Hat can provide its customers with a guarantee that they will not need to fear a potential claim against intellectual property infringement. Red Hat does this through its Open Source Assurance Program.
As the Open Source Assurance Agreement contract states, in the event that a third party alleges infringement of intellectual property in the software provided to the client by Red Hat, the company will,
(i) defend Client against the Claim and
(ii) pay costs, damages and/or attorneys fees that are included in a final judgement against Client (without right of appeal) or in a settlement approved by Red Hat that are attributable to Client’s use of the Covered Software; (Red Hat, Inc., 2016)
Furthermore, if the Client’s use of Red Hat’s software is found to infringe the third party’s intellectual property rights, then Red Hat will
(i) obtain the rights necessary for Client to continue to use the Covered Software consistent with the Support Agreement(s);
(ii) modify the Covered Software so that it is non-infringing; or
(iii) replace the infringing portion of the Covered Software with non- infringing code of similar functionality (subsections (i), (ii) and (iii) are the “IP Resolutions”); provided that if none of the IP Resolutions is available on a basis that Red Hat finds commercially reasonable, then Red Hat may terminate the Support Agreement(s) without further liability under this paragraph, and, if Client then returns the Covered Software that is subject to the Claim, Red Hat will refund any prepaid subscription fees related to Covered Software. (Red Hat, Inc., 2016)
From Red Hat’s perspective, then, this is the legal-juridical benefit of controlling what is included in the Fedora Project, as well as centralising control of the intellectual property rights within its corporate structure. Red Hat relies on the FLOSS community to perform the cooperative labour of developing new features, fixing bugs or otherwise improving the Fedora Project so that these features can be included in its commercial offerings. In order to assure its customers that they will not be subject to intellectual property infringement claims from third parties, Red Hat requires contributors to assign licenses to their work that will allow Red Hat to continue providing its services. In effect, Red Hat is separating authorship from ownership, which is one of the primary critiques of intellectual property laws (see Bettig, 1992). However, Red Hat does not use copyright to prevent authors or anyone else from making use of the code in other ways. Rather, Red Hat is just trying to ensure that the rights to use the code in Fedora have been legally transferred to the company, which allows the company to provide assurances to its customers. Red Hat’s method for protecting its core intellectual property does not come from copyright, but the company still prevents exact redistributions of its property through trademark law." (http://peerproduction.net/issues/issue-10-peer-production-and-work/from-the-commons-to-capital/)
Information about the Fedora Project Council is publicly available on the project’s wiki, which is available at: http://fedoraproject.org/wiki/Council (accessed on 31 August 2016).
Information about the Individual Contributor Licensing Agreement can be found on the project’s wiki at: http://fedoraproject.org/wiki/Legal:Licenses/CLA (accessed on 31 August 2016).
Information about the Fedora Project Contributor Agreement can be found on the project’s wiki at: http://fedoraproject.org/wiki/Legal:Fedora_Project_Contributor_Agreement (accessed on 31 August 2016).
The Software License List can be found at: http://fedoraproject.org/wiki/Licensing:Main?%20rd=Licensing#Software_License_List (accessed on 31 August 2016).