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(forw) Re: [Spi-private] IRC log from 2003-02-04 SPI Board meeting

Dear ecos-maintainers,


FYI, I forward a probably relevant discussion from the SPI list.

The comments of Ted Ts'o seem very relevant to me. How does the Redhat
Copyright assignment stand to this discussion (on "imdenification") ?

Also note the Ted explicitely suggests using a corporation (and not a not for 
profit) for holding Copyright, because it is much more capable of defending 
itself and holding the _persons_ non-liable.  e.g. in Belgium, all members 
of a not-for-profit, like the badminton club that I am a member of, are all, 
fully and individually liable if a player would get hurt, when playing without 
insurance, this covers both the "organizers" of the club, but even all 
individual members. 

Sorry I did send the full text (dont' know how to get the pointer to this
quickly).

Hope this helps,

Peter
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Hello, Mr. Oberg:

I am forwarding this message to the spi-general list for discussion
among our membership.

Thanks for writing!

On Sun, Feb 23, 2003 at 09:23:32PM +0100, Jonas Oberg wrote:
> Hi Branden, could you forward this to whoever is appropriate?
> 
> I read from the IRC log from the board meeting of the 4th of february
> that the SPI is considering accepting "copyright assignments", similar
> to those that the Free Software Foundation North America uses.
> 
> This seems like a good idea to me and I encourage it. I would however
> also point you to http://www.fsfeurope.org/projects/fla/ which is the
> Fiduciary Licence Agreement (FLA) developed by the FSF Europe in
> coordination with, among others, Eben Moglen.
> 
> It addresses the same issues as the Copyright Assignment that the FSF
> NA uses, but is crafted in a way that allows it to be used also for
> the continental European Droit d'Auteur authorship tradition, which is
> different than the anglo-american copyright system used by the US.
> 
> The FSF NA is currently looking at using the FLA, or some derivative
> thereof, for their own "copyright assignments", but they have not
> decided yet and it is a low-proprity issue since the normal "copyright
> assignments" work well enough.
> 
> If the SPI would accept similar contracts, I would recommend that you
> have a look at the FLA. I believe that it will be more useful for you
> than the older "copyright assignment" contracts. Please see the web
> pages for more information, and email fla at fsfeurope dot org with any
> questions. They can also assist you if you would be interested in
> using the FLA as a contract for the SPI.

-- 
G. Branden Robinson, Treasurer
Software in the Public Interest, Inc.
treasurer at spi-inc dot org
http://www.spi-inc.org/

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One comment about the U.S. versions of such a copyright assignment.  I
would strongly suggest that any such legal wording be similar to the
one which the FSF accepted from IBM when IBM donated the s390 changes
to the binutils package:

http://sources.redhat.com/ml/bug-binutils/2000-q3/msg00000.html

... and not based on the default templates distributed by the FSF.  In
particular, the offending words which you will note the IBM lawyers
removed from the assignment agreement referenced above are:

	"... I hereby indemnify and hold harmless the Foundation, its
	officers, employees, and agents against any and all claims, actions or
	damages (including attorney's reasonable fees) asserted by or paid to
	any party on account of a breach or alleged breach of the foregoing
	warranty."

Why is this bad?  An explanation can be found at this web page:
http://ohwg.cap.gov/jag/indemnify.html.  In part:

	"Indemnification means you agree to step into the shoes of the
	person you have agreed to indemnify and suffer in their place whatever
	consequences they were to suffer because of something happening
	(literally to protect them from being "damned").  That includes
	financial suffering - paying the bills to repair or replace damaged
	things; paying the judgment a court assesses them for injury to a
	third party; sometimes paying a fine levied against them; anything
	short of imprisonment for their own direct criminal conduct.  Anyone
	want to bet their own house and savings?"

A good rule of thumb is that any time you see a legal agreement with
the word "indemnify", that should be an immediate red flag, and you
should ideally refuse to sign such an agreement before getting
competent legal advice.

If I'm going to write software, and donate my efforts and my
intellectual property the Open Software community, that's my choice.
I've done this on many occasions.  But one thing that I will NOT do
after making such a free donation of my efforts is to sign something
which explicitly puts my house and all of my savings at risk.  If IBM
refused to put its corporate assets at risk when it donated the s390
binutils changes to the FSF, why should I risk mine?  As a result, I
will refuse to donate code to any project which requires me to sign an
agreement with similar language.

						- Ted

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On Tue, Feb 25, 2003 at 12:54:36PM -0500, Theodore Ts'o wrote:
> If I'm going to write software, and donate my efforts and my
> intellectual property the Open Software community, that's my choice.
> I've done this on many occasions.  But one thing that I will NOT do
> after making such a free donation of my efforts is to sign something
> which explicitly puts my house and all of my savings at risk.  If IBM
> refused to put its corporate assets at risk when it donated the s390
> binutils changes to the FSF, why should I risk mine?  As a result, I
> will refuse to donate code to any project which requires me to sign an
> agreement with similar language.

Fair enough. But on the other hand, I guess SPI has to decide whether
*it* wants to take up any risks and stand up for whatever code it
accepted. What happens if some company decides they have a patent on
something and tries to sue us into oblivion?

Michael

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On Wed, Feb 26, 2003 at 01:28:46AM +0100, Michael Banck wrote:
> On Tue, Feb 25, 2003 at 12:54:36PM -0500, Theodore Ts'o wrote:
> > If I'm going to write software, and donate my efforts and my
> > intellectual property the Open Software community, that's my choice.
> > I've done this on many occasions.  But one thing that I will NOT do
> > after making such a free donation of my efforts is to sign something
> > which explicitly puts my house and all of my savings at risk.  If IBM
> > refused to put its corporate assets at risk when it donated the s390
> > binutils changes to the FSF, why should I risk mine?  As a result, I
> > will refuse to donate code to any project which requires me to sign an
> > agreement with similar language.
> 
> Fair enough. But on the other hand, I guess SPI has to decide whether
> *it* wants to take up any risks and stand up for whatever code it
> accepted. What happens if some company decides they have a patent on
> something and tries to sue us into oblivion?

We say we didn't know and remove the code ?

Friendly,

Sven Luther

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On Wed, Feb 26, 2003 at 01:28:46AM +0100, Michael Banck wrote:
> Fair enough. But on the other hand, I guess SPI has to decide whether
> *it* wants to take up any risks and stand up for whatever code it
> accepted. What happens if some company decides they have a patent on
> something and tries to sue us into oblivion?

Well, life is full of tradeoffs.  One advantage of a distributed
copyright ownership is that it makes life a lot harder for some
company who has a patent on something to sue someone into oblivion.
To take a concrete example, which would get elicit more world-wide
sympathy, and which would be harder to do?

1) For an big, multi-billion dollar U.S. company to sue an innocent
17-year boy in Norway, under Norwegian laws?  (Replace 17-year boy
with 26-year old Russian with two children, aged two-and-a-half and
three months for another example.)

2) Or for that same company to sue a faceless non-profit corporation
which most people (and certainly all non-geeks) haven't heard of
before, in a U.S. courtroom?

Think about that, for a moment.  

If you want to protect the assets of the SPI, then contact a good
lawyer, and ask him/her to help you set up a subsidary, or sister
corporation to hold the IPR that you're so interested in centralizing,
but which otherwise has little to no assets.  It needs to be separate
enough that lawsuits against it can't pierce the corporate liability
shield, but which SPI (and other non-profit organizations) could
choose to funnel money to it via donations if it needs to defend
itself in court.  (Or such organizations could donate legal help
directly to specific cases, as the EFF has done from time to time.)

The bottom line is a good lawyer should be able to help the SPI use
corporations they way they were meant to be used; to help individuals
to duck out of being held personally liable.  It's important to
remember that the same legal rules that allow a company to be sued for
millions for making coffee too hot also has provisions that allow rich
people to shield their personal wealth from much of that liability.
If the SPI wants to do something like centralize copyright holdings
(and I'm really not convinced it's worth it), the least it can do is
to use similar techniques to protect individual open source
contributors' assets as much as possible.

						- Ted

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