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I'm currently working on a project where the original author informally told me that he didn't want to publish the source.

Since then, the original author has gone leaving me to be the sole developer on the project. I've tried to contact him several times about making the project open source so that I can have other developers assist me but he is not responding to any communications.

I'm not planning on trying to make money of the software, I just want a general license that allows me to put the code on GitHub or BitBucket so that other people in the community can assist me with the development.

Can I do this since he is gone and not responding to any form of communication? Is there a time period I need to wait? I know what I asking for is legal advice, I just have no idea where to start looking to find the answer so I decided to start here.

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3 Answers

up vote 13 down vote accepted

Can I do this since he is gone and not responding to any form of communication?

No. Changing and/or issuing a license can only be done by a unanimous decision by all copyright holders. If you can't reach him, then he can't give his consent, ergo you cannot change the license.

Note: there are exceptions to this rule. If there is a decision that benefits the vast majority of copyright holders, but a small minority of copyright holders objects without any reasonable arguments, then the majority can sue the minority for compliance. For example, if translating a movie and releasing it to an international audience will likely generate a great amount of revenue, but a couple of minor extras object to their lines being translated, the rest of the copyright holders can force them to comply. (Although it might be easier to just cut their scenes!)

Is there a time period I need to wait?

70 years after his death his portion of the code will become public domain, i.e. you won't need a copyright license anymore because there is no copyright.

I know what I asking for is legal advice, I just have no idea where to start looking to find the answer so I decided to start here.

The person you are looking for is called a "lawyer".

All of this applies to German Author's Rights Law. You didn't specify a jurisdiction, so I am assuming the one I am most knowledgeable about.

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Thanks. I just needed to see what my options were. Looks like I'm just going to have to let the project die and start a new one under the appropriate license. –  Russell Durham Nov 12 '12 at 19:47
@RussellDurham - Actually, that may not necessarily be the case, but you will still have to talk to a lawyer about your particular jurisdiction. There is large precidence for "abandonware" or "orphaned works," which can arguably go into the public domain. However, this is hazy in some places, and so will greatly depend on where you (and the other person) lives. –  Shauna Nov 12 '12 at 19:49
@RussellDurham: Well, one thing you can ask yourself: if you cannot track down the original author, then how likely is it, that he will track you down and sue you for license violation? –  Jörg W Mittag Nov 13 '12 at 0:52
@JörgWMittag That thought had crossed my mind. It's really just a small niche project that I don't see it ever happening tbh. –  Russell Durham Nov 13 '12 at 2:29
@RussellDurham: Apart from not being a very professional approach to a complex legal problem, he will track you down when the software becomes successful enough that he can make money. Now theres an interesting (read expensive) legal case. "You stole my software, which now has 10 million users and I recon it's worth $100 a copy - lets talk damages.....". –  mattnz Nov 13 '12 at 2:36
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The accepted answer sums up the legal position. If he owns substantial copyright, you can only change the license with his explicit permission ... in most legal jurisdictions. (IANAL, TTAL)

My advice would be to consider starting again from scratch. You could possibly use salvageable bits that you can prove that you own copyright for. This sounds wasteful, but a project may actually benefit from a ground-up rewrite. Provided that you resist scope creep, you should be able to build the new version quicker than the old one, and you get the chance to revisit a lot of design decisions with the benefit of hindsight ...

It would help if you have people interested in pitching in effort from day 1 of your rewrite.

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There are so many details that you don't mention in your question that could have an impact on how you could proceed with this. Best bet is to talk with an intellectual property attorney and get their input.

Your solution may be as simple as small filing fee in your local small claims court. But only an attorney can tell you for sure.

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