Drafting Options for Contributor Agreements for Free and Open Source Software: Assignment, (Non)Exclusive Licence and Legal Consequences. A Comparative Analysis of German and US Law

Abstract

Free and Open Source Software (FOSS) has become so widespread that it is now used in virtually every type of device and is distributed in almost every market. Scores of FOSS projects offer their software and try to attract contributors and users. In this context, a key question that has become increasingly relevant is whether FOSS projects need to legally formalise the contribution process by using Contributor License Agreements or Contributor Assignment Agreements, and if so, how such agreements should be drafted. This paper focusses on three general drafting options – assignments, exclusive or non-exclusive licenses – and analyses each of these options’ advantages and pitfalls. Given the global nature of FOSS, the paper adopts an international perspective by exploring two model jurisdictions that represent two contrasting legal systems and traditions: Germany, the drafter’s home country, with its typical continental-European legal approach; and the United States of America, a common law jurisdiction and globally the leading software-developing country.