Who Owns Koha?

In New Zealand, Maori customs are taken seriously. For example, in 2002, the route of a new highway through a swamp had to be altered because it was believed that three taniwha - Karutahi, Waiwai, and Te Iaroa - lived there, and were being disturbed by the road, causing an unusual number of accidents. Taniwha are mythical beings that act as guardian spirits. Many taniwha arrived in New Zealand as guardians of specific ancestral canoes and then took on a protective role over the descendants of the canoe's crew.

Another Maori custom, one that has crossed over into general New Zealand culture, is that of "koha".  "Koha" is often translated as "gift", but according to Chris Cormack, one of the original developers of the Free Open-Source Software (FOSS) Library System with the same name, a more accurate translation would be a "gift with expectations".   Cormack got his B.A. degree in both mathematics and Maori Studies, so he should know. A koha is gift that is offered with an expectation that it will be reciprocated.

In the U.S., (and to a lesser extent, in Europe) it's our lawyers that we seem to take seriously. And so when we let people use software that we've developed, its not enough to offer it as a koha, we have to use a legal license to spell out the terms of the release. The license that has become popular because of the expectations of reciprocity built in to it is the Gnu Public License (GPL).

Software released under the GPL cannot be thought of as an unconditional gift by its developer. GPL software is not in the public domain, it is copyrighted. A copyright owner can exert control over the use of the copyrighted material; the GPL uses that power to require licensees to publish any modifications they make if they want to redistribute the modified work.  When the Horowhenua Library Trust was choosing a license to use for Koha (the library system software), they chose GPL (version 2) because they thought it would prevent Koha from being further developed as non-open software.

Included in the recently announced (but not yet completed) acquisition of LibLime by PTFS were Koha-related assets, including source code copyrights, trademarks and the koha.org website. It may be difficult for the casual observer to understand what value these assets have, especially in light of the GPL license attached to Koha. Could these assets be used to privatize Koha in some way? The short answer is "No", but it gets complicated.

Some FOSS companies use "dual licensing" as a business model. They release their code under GPL, but if another company wants to use the software in a way that would not be allowed under GPL, it has the option to pay for a commercial license. Dual-licensing can only be done by the original copyright owner. Index Data has used this model for years to the great benefit of libraries everywhere. MySQL AB is an example of a company which was extremely successful with this model; it was acquired by Sun Microsystems for about a billion dollars. (See this article for an overview of how GPL licensing fared in Oracle's subsequent acquisition of Sun.)

The GPL makes it very difficult, however, for anyone to change licensing terms after software has been released into the world. That's because of the way copyright law determines the copyright holder of derivative works. In general, if I take a piece of software that you have written, and modify it in such a way that involves creative effort on my part, then I own the copyright to the changes that I've made and the resulting work is a derivative work that both you and I have a copyright interest in. Even though you are the original copyright holder, you would need my permission to release the derivative work under any license other than the GPL.

Unlike Index Data's software, Koha has included significant contributions from many developers, including many who have never worked for LibLime or Katipo Communications (which sold its copyrights to Koha source code to LibLime in 2007). So although LibLime probably owned clear copyright to a majority of Koha at some point, Koha is still a collective work locked into GPL, version 2, and it is unlikely that LibLime or PTFS would be able to distribute Koha under terms other than GPL without doing a thorough rewrite of the software.

Trademarks are a different story. LibLime owns the US trademark for Koha; a European trademark is held by BibLibre. Trademarks are frequently used by open source projects to prevent splintering. The excellent primer on legal issues by the Software Freedom Law Center puts it this way:

FOSS applications develop reputations over time as users come to associate an application’s name with a particular standard of quality or set of features. Trademark law can help protect this relationship of trust and reliance that a project develops with its users; it allows the project to maintain a certain amount of control over the use of its brand.

Since GPL and other FOSS licenses allow anyone to modify and distribute software as long as the license conditions are met, they frequently spawn variants. The owner of a trademark can prevent these variants from using the trademarked name, and thus enforce unity in a project.

In the case of Koha, there are currently two parallel tracks of development being pursued, one inside LibLime, and the other by the community of developers outside LibLime. I will have to postpone a discussion of the issues surrounding  these development tracks to yet another article, but for now, let's just assume there will be two main versions of Koha, LibLime Koha and Community Koha. In the US, LibLime could theoretically prevent anyone from  using the name "Koha" without its authorization, and could strip Community Koha of the right to use "Koha" in its name. In fact, LibLime and BibLibre threatened to use this power a year ago to regulate PTFS's use of Koha trademarks in the marketing of its Koha support services. Liblime could even apply the Koha name to non-Open Source software. Similarly, BibLibre could regulate the use of the Koha name in Europe, preventing LibLime from marketing LibLime Koha there.

Based on discussions I've had with the leaders of almost every open-source library system company, I think it is unlikely that there will be any such "trademark war". Even if the development of Koha continues on separate but related tracks, the success of every Koha-based company is tied to the success Koha as a whole, and vice versa. It would be advantageous for every stakeholder if the two trademark owners develop some sort of "big tent" system of Koha trademark governance. Assuming PTFS's acquisition of LibLime is completed, such governance will need to be acceptable to both PTFS and BibLibre, and will need to accommodate differing styles of software development.

Until a general agreement on the use of Koha trademarks is reached, Koha stakeholders would be well advised to recognize that collective copyrights tie them into the same canoe and that they should avoid disturbing the taniwha that guards and protects them.

This article is the second part of a series. Part 1 is here. Part 3 is here

Article any source