GitHub announced today it is setting up a GitHub Developer Rights Fellowship at the Stanford Law School Juelsgaard Intellectual Property and Innovation Clinic using funding from a $1 million Developer Defense Fund is created.
The GitHub Developer Rights Fellowship will be made accessible at no cost to developers any time GitHub receives a valid takedown claim that would require GitHub to remove code from its public repository.
Most of the takedown claims involve alleged copyright infringements as defined by The Digital Millennium Copyright Act (DMCA). Section 1201 of that act prohibits circumvention of technological protection measures such as digital rights management (DRM). The section has been wielded against developers that have contributed open-source code that provides capabilities that might be similar to code used within a proprietary application. The issue is that lawyers can routinely issue such challenges regardless of merit because the organizations that hire them know most open-source code developers are individuals that lack the resources required to defend themselves.
In the face of a legal challenge, many developers will opt to remove code from a public repository to the detriment of a community of other developers that have incorporated that code in a wide range of applications, said Mike Linksvayer, head of developer policy for GitHub.
GitHub is willing to help developers make legitimate cases because the number of takedown claims involving open source software has been climbing in recent years. In addition to patent trolls that seek to profit from lawsuits filed against vendors that have developed a product that may or may not have violated a patent, there are also now copyright trolls that launch similar lawsuits after they acquire the rights to a copyright. “There are frequent submitters,” says Linksvayer.
GitHub selected the Stanford Juelsgaard Clinic to provide legal advice to developers because of its previous effort to intellectual property law and regulatory policies in a way that promotes increased innovation and creativity, says Linksvayer. In addition to providing legal counsel, the fellow will be researching, educating, and advocating on DMCA and other legal issues important for software innovation. The fellow will also train students in the clinic and other lawyers on how to work with developers and advocate on behalf of open source communities.
Many of the takedown claims being made are based on a Section 1201 clause in the DMCA that is a complex piece of legislation, says Phil Malone, director of Juelsgaard Intellectual Property and Innovation
Clinic at the Stanford Law School. A piece of legislation that is primarily designed to protect the copyrights of films and books is being applied to software in a way that makes it too easy to abuse the takedown notice process, he says.
The individual developer that may have violated that copyright can, of course, attempt to create a workaround an issue, but that effort usually requires the ecosystem that employs that code to manage a series of disruptive upgrades. Sometimes the cost of that disruption exceeds the cost of licensing the copyright.
There are, however, instances where legitimate intellectual property is being circumvented by open-source code that has been contributed to one project or another. The issue is that those claims should be at least heard in a court of law versus simply acquiesced to because the developer didn’t have the funds required to make their case. The GitHub Developer Rights Fellowship is committed to providing open-source developers with means to press their case, says Malone. “We want to give them away to push back,” he says.
Naturally, a little more clarity concerning how DMCA should be applied to software might go a long way toward reducing the number of lawsuits being filed. In the meantime, however, every open-source developer that wants their day in court should be able to have it without having to risk financial ruin.