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<?xml version="1.0" encoding="UTF-8"?>
<html newsdate="2025-02-17">
<version>1</version>
<head>
<title>Legal
Corner: MIA or Dead Contributors - Does It Matter For Your Software Project?</title>
</head>
<body>
<h1>Legal
Corner:MIA or Dead Contributors - Does It Matter For Your Software Project?</h1>
<p>
If your software project operates on multiple contributions, and a contributor
becomes uncontactable or passes away, this can become an issue in
certain situations. Here we’ll discuss when a missing or deceased
contributor affects your software project, and what options you
have.
</p>
<figure>
<img src="https://pics.fsfe.org/uploads/original/71/14/f08c28c51d8623c12bef20b9deea.jpg"
alt="A computer with lines of code"/>
</figure>
<p><strong>Which contributions are copyrightable?</strong></p>
<p>Before anything, when is a contribution copyrightable in the first
place? Commonly, software projects that are hosted on popular hosting
websites, such as GitHub, GitLab, BitBucket etc, often encompass
contributions by multiple contributors. Nevertheless, as only “creative
works” can be copyrighted, the extent to which the contribution can be
regarded as a “creative work” can be a bit tricky to ascertain. The
length of the contribution does not matter because short contributions
can also be creative.</p>
<p>Primarily, anything that is accepted as a change into the source
code, and modifies the source code can constitute a creative work that
is copyrightable. This is the case even if they are minor or small
changes; even single line bug fixes with a creative scope is a
contribution that falls into this category.</p>
<p>On the other hand, non-source code contributions, such as
translations, documentation, or configuration files can be commonly made
available in the public domain, or even regarded as insignificant
changes outside of the scope of the applicable Free Software license.
Nevertheless, to err on the side of caution, the safest approach is to
assume whenever in doubt that a contribution is a copyrightable
contribution, and act accordingly.</p>
<p><strong>When do you need to get in contact with a contributor?</strong></p>
<p>Generally, you would need to get in touch with a contributor to your
project whenever you wish to enact some kind of major change to the
overall project. The most common situation for this would be where a
project runner intends to re-license the project.</p>
<p>If you need to make such a change, your first step should be to
compile a list of all contributions that are copyrightable, as well as
their respective contributors. You should then obtain consent for all
copyrightable contributions, including those of deceased or otherwise
uncontactable contributors. </p>
<p>The reason that you need to do this is that software enjoys copyright
protection from the instant that is created. This means that a
contributor by default has copyright over their contribution, and does
not need any additional steps to protect their work under copyright.
There are of course exceptions to this, most notably when the
contributor has effectively transferred their copyrights over the
contribution to you or your project, making you or your project the
copyright holder.</p>
<p><strong>What happens if the contributor has passed away?</strong></p>
<p>Generally, copyright law provides that ownership of the copyright
remains with the contributor even after death. In most EU jurisdictions,
this means that copyright lasts for 70 years after the death of the
author, or in the case of joint authorship, after the death of the the
last surviving author. Once this 70-year term expires, the work will
enter into the public domain, where others may use the work for
commercial purposes without requesting any authorization or license.</p>
<p>Copyright is considered to be personal property, and therefore
copyright ownership can be included in a will, and passed on to another
person upon the copyright holder’s death. Accordingly, you should
inquire with the deceased contributor's estate to see who the copyright
has passed onto and seek their consent before making any changes to the
project that require the consent of all contributors. In the event that
there is no specific provision for who takes ownership of the copyright
of software contributions in the will, the rights will be passed along
in accordance with the national laws of intestacy where the contributor
was residing in.</p>
<p>Regardless of whether or not the ownership of the deceased’s
copyright in the project was covered in a will, the new copyright
owner(s) would now be the people that you have to obtain your consent
from. Nevertheless, please remember when doing so to always be
respectful and sensitive in such communications. Losing a loved one is a
difficult enough thing to go through, and many relatives will not want
to be contacted too soon after the death of their loved one with
questions about contributions.</p>
<p><strong>Looking for help with established platforms or software
foundations</strong></p>
<p>If your project is hosted online on a popular code repository hosting
platform, you should check to see if they have any policies for deceased
or absentee contributors. As an example, GitHub has a <a
href="https://docs.github.com/en/github/site-policy/github-deceased-user-policy">Deceased User
Policy</a>.
This policy is written primarily to allow GitHub to work with authorized
persons in the deceased's estate to determine what to do with the
deceased’s GitHub account. It is also useful for next of kin,
pre-designated successors, or other authorized individuals (which could
include a collaborator or business partner) of a deceased user, to be
able to gain control over a deceased user’s account.<br />
<br />
It could also be useful to send a request to other popular foundations
such as the Apache Software Foundation, the Mozilla Foundation, or the
Linux Foundation inquiring about the status of the deceased developer's
account, as some developers have adopted the practice of willing
contributions to Free Software foundations.</p>
<p><strong>What happens if you can’t contact a contributor or their heirs?</strong></p>
<p>If obtaining the consent of a contributor or their estate has turned
out to be impossible, one practical recourse would be to fork the
project repository, while moving the contribution(s) of the missing
contributor(s) to stay under the original. A good practice when taking
this course of action would be to credit previous contributors who have
created the original program from which the fork is carved out.
Therefore, if all efforts fail to trace and contact the missing
contributor(s), you can at least point to some form of attribution to
mitigate any potential complications down the line.</p>
<p>Another practical option that many project runners frequently take
would be to ignore the deceased and/or missing contributor(s) and their
contributions altogether. While this is not strictly the correct legal
approach, it is nonetheless a practical one that allows projects to move
forward with their plans. Software project that go down this route do so
after a thorough risk assessment, more specifically, after analyzing (1)
the significance of the contribution in question; (2) the likelihood of
the contributor or their estate contesting the decisions of the project,
based on their ownership of the copyright over the contributions; and
(3) the likelihood of success of any such contestation. </p>
<p>In many cases, project runners may come to the conclusion that the
risk of the missing/deceased contributor showing up to assert the rights
of their ownership of the contribution is small enough, such that moving
forward without the explicit consent of that particular contributor or
their estate is worth the risk. </p>
<p>We hope that this has been useful for your understanding of managing
this particular legal issue within a software project. </p>
</body>
<sidebar promo="our-work">
<cite>This publication is part of the FSFE’s
Legal Column aimed at offering basic legal guidance on various issues
related to Free Software. Please note that this article does not
constitute legal advice. If you have a legal or licensing question
related to Free Software that is not covered here or in any of our other
resources, you can consider asking our License Questions team by sending
them an email at <email>licence-questions@fsfe.org</email>.</cite>
</sidebar>
<tags>
<tag key="front-page"/>
<tag key="community">Community</tag>
<tag key="legal">Legal</tag>
<tag key="licensing">Licensing</tag>
<tag key="legal-corner">Legal Corner</tag>
<tag key="higlights">highlights</tag>
</tags>
<discussion href="https://mastodon.social/deck/@fsfe/"/>
<image url="https://pics.fsfe.org/uploads/original/71/14/f08c28c51d8623c12bef20b9deea.jpg"
alt="A computer with lines of code"/>
</html>