6

Let's say that John is on Blue Team. Blue Team is a private, non-profit entity in the US that receives some funding from the federal government.

John wrote some software while on Blue Team that was explicitly made for Blue Team to use. John put his name at the top of many of the code files he wrote. This code is public on Github, but does not have a license specified.

However, John did something bad and was kicked off of Blue Team. During this process, John transferred ownership of the code repository on Github to Jane.

Some members of Blue Team would be disturbed to see John's name. Because of this, Jane would like to change all mentions of John's name to "former Blue Team member."

Can Jane do this?

Does Jane's ability to do this depend on Github's rules for repository ownership, Blue Team's policy on IP created while on paid time, or something else?

It seems likely that Jane would be able to remove John's name from the code on Github, but can Jane remove John's name from other versions of the software too? (Such as the versions of the software used internally by Blue Team.)

9
  • 3
    Is there an existing policy for the repository that the author of a each file will be stated in the file? In other words, are authors explicitly stated in every file, or at least most files? If so, are you willing to change that policy, so that all authors are treated uniformly (i.e. so none are explicitly mentioned in each file, relying on the commit record for attribution)? Does the repository have a written license? What was the relationship between "Blue Team" and John? Was it an employee/employer relationship (this is implied by your question, but not explicitly stated)?
    – Makyen
    Jun 6 '20 at 17:10
  • 4
    Without adding a jurisdiction, this is unanswerable. In some countries you can never lose the right to be credited for what you did, you cannot give it up, sell it, nothing.
    – o0'.
    Jun 6 '20 at 22:22
  • 2
    I'm reminded of this question and its answers on SO: Javadoc @author tag good practices
    – Andrew T.
    Jun 7 '20 at 1:11
  • 1
    I am leaning towards "if you got paid for it, you sold it. If you sold it, it's not yours", although that may be to simplistic for the law. Was there any contract related to the sale (even if that "sale" was sales of time when working), regarding attribution? Jun 7 '20 at 6:42
  • @Makyen question has been updated. No license specified, there is a an employee/employer relationship between John and Blue Team.
    – getfugu
    Jun 7 '20 at 20:10
12

Presumably Blue Team are all employees of some company ("the employer"), so the software is a work for hire and copyright is owned by the employer.

However in the UK and some other countries (but not in the US) authors also have "moral rights" over their work, including attribution, integrity, and association of an author to the work.

This article (by Canadian lawyer Mark H. Evans) discusses the question of moral rights in works for hire:

For example, if a former employee wrote a blog to promote a company’s services that was published on the company’s website under that author’s name, the company might find itself being sued for breach of the author’s moral rights if it were to delete the author’s name and replace it with the name of an employee who wasn’t the author but is still with the company.

On the face of it John would be in a similar position to the blog author in the quote. So for the employer (including Jane, as an employee) to remove John's name would be a violation of his moral rights to attribution.

In this case the source code is public. However in most commercial settings it would be secret:

  • The secrecy of the code would make it harder for John to find out his name had been removed. However lets suppose that a friend still in Blue Team were to tell him. I'm not sure about discovery rules in various countries, but presumably a serious lawsuit could get confirmation.

  • The secrecy of the source code also means that fewer people would see John's name there than if it were generally published. This would lessen the damages, but not eliminate them. John would probably be able to get an injunction ordering that his name be restored.

  • Many programs are published with a credit list, and John would certainly have a moral right to appear on such a list with the same prominence as other team members.

From later in the same article:

While moral rights are personal and can’t be assigned, they can be waived. This is an important solution to navigating moral rights in works generated by employees and contractors. And because any assignment of copyright is not an automatic waiver of moral rights, the waiver must be express.

So it depends on the contract between John and the employer. If John has explicitly waived his right to attribution then the employer is in the clear.

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  • 4
    To me the case (in the quote) where authorship was explicitly asserted not to be done by the actual author is morally quite different from the case where the authorship information is just removed - or replaced by a less specific (but still true) statement. In the first case it makes the true author look like a liar if he states the truth that he wrote that code Jun 6 '20 at 17:02
  • Note that in much of EU moral rights can't be waived. europarl.europa.eu/RegData/etudes/STUD/2018/625126/…
    – Gnudiff
    Jun 6 '20 at 23:57
  • Question has been updated. Blue Team and John have an employer/employee relationship in the US
    – getfugu
    Jun 7 '20 at 20:11
  • @Gnudiff but they don't have to be asserted. If the employer stops crediting John and John doesn't care about that, there is no problem.
    – phoog
    Jun 8 '20 at 3:07
  • 1
    @getfugu the question does not mention the US. It does mention a federal government, but that could be Germany, Mexico, Brazil, Canada, Switzerland ...
    – phoog
    Jun 8 '20 at 3:09
0

I'm answering under the assumption that you are using an open source license, given you have the code publicly on GitHub. I'm also assuming, since you want to remove their name from the code, what they did is very serious, potentially criminally actionable.

Many open source licenses have an attribution clause which says you can't remove people's names from projects they've collaborated on. Check to see if the license you're using has one of these.

If your license allows this, you have another problem in terms of community drama. People are going to notice that you've removed that person's name, and you're gonna have to walk VERY carefully around this. The best case scenario is, you have a clear, general, public code-of-conduct like thing you can point to, even if it doesn't 100% fit what they did (e.g: a harassment and unwanted attention clause). If not, the most you want to say is that they're no longer an employee of the company and due to very exceptional circumstances, their name is being removed from the project. DO NOT detail what they did in any way, as this can bite you in the ass legally.

1
  • The question has been updated to reflect that the code on Github is published without a license (not explicitly open source). I believe this page about Github's ToS gives some more information about what that means: help.github.com/en/github/…
    – getfugu
    Jun 7 '20 at 20:06

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