[OSGeo-Discuss] Board Proposal: Statement of OSGeo Legal Support

[Cameron Shorter]

Frank,
I like the way you define the different areas of legal risk OSGeo and 
members face, and suggest actions that OSGeo should take under these 
circumstances. Your suggestions make sense to me.

To complete the loop, I suggest:
1. Legal review of your suggestions to confirm you have the key issues 
covered.
2. Cost and probability estimations be assigned to the different 
scenarios, probably as part of legal review.
3. Board vote to accept plan.
4. Budget allocated for likely costs. Eg: Developer access to lawyer to 
advise on consequence of an action against them, but not guaranteed to 
be defended in court.
5. Legal stance documented on a web page. (Converting this email to HTML 
would be sufficient for me).


Frank Warmerdam wrote:
> Arnulf Christl wrote:
>> The most basic kind of protection that OSGeo can give is that it can 
>> take any legal action because it is a legal entity. This alone is 
>> already much more than the GeoTools Project currently has.
>> Additionally OSGeo does have funds to spend and when it comes hard to 
>> hard it will probably go and shop for some good lawyers and go for 
>> it. But not preemptively, I still do not see the reason. The cold war 
>> era is over and in retrospection we know it was only good for the 
>> weapons industry (in this context this is the lawyers (please lawyers 
>> forgive me for this analogy (and there is the "anal" thing again))).
>
> Arnulf / Cameron,
>
> I can imagine two broad areas of litigation possible.
>
> One is pursuing violators of the requirements of OSGeo open source 
> software.
> So, for instance, if XYZ Corp embeds and improves GeoTools in their 
> proprietary
> software and does not offer the updated source as required by the 
> GeoTools
> LGPL license.  Rather than expecting Jody to personally litigate again 
> XYZ
> corp, it would be nice if the foundation could do so on the projects 
> behalf.
>
> Hopefully such violations would be normally handled by educating the 
> license
> violators, but in the worst of cases I can imagine OSGeo considering
> litigation.
>
> The other side of things is defending OSGeo projects and developers 
> against
> litigation by others.  As a concrete example, I was legally threatened
> several years ago by MapTech who made vague claims that the BSB format 
> was
> their intellectual property and that I was to remove all my related
> resources (http://home.gdal.org/projects/bsb/ipi.html).
>
> In a situation like this, it is possible that OSGeo could step in to 
> defend
> the individual developer since individuals can't easily defend 
> themselves.
> Note that MapTech wasn't looking for a pool of money.  They were just 
> wanting
> to interfere in what the project was doing for their own business 
> reasons.
>
> Other scenarios might be claims from organizations that some of their
> copyrighted code has been improperly used in a project, violation of
> trademarks, patent violations and so forth.  Keep in mind that a legal
> threat doesn't have to be all that well founded to have a chilling 
> effect.
>
> To me the question is to what extent OSGeo should structure itself and 
> it's
> project to take on legal risks of this sort and shield developers.  
> Lacking
> a detailed consensus my expectation has been that the foundation would 
> not
> go out of its way to structure projects such that OSGeo would be most 
> likely
> legal target, but that the foundation would review any litagation that 
> does
> occur for project and *consider* getting involved in defence of the 
> developer
> or project.  The decision might include factors such as whether we 
> believe
> the developer is in the wrong (or at least in some not so well defined 
> gray
> area), whether the issue is strategic or would be better off dealt with
> by avoidance (ie. remove offending material), how much financial 
> resources
> we have available to deal with the legal issue, and what the risk to the
> foundation as a whole of getting involved would be.
>
> I am nervous about making guarantees of defending developers, or 
> prosecuting
> license violators as we could easily get dragged into expensive 
> litigation
> that is not really sensible for us to be wasting resources on.
>
> If we were to take my approach (a sort of default approach perhaps) I 
> would
> be explicitly not agreeing to make a clear statement on our 
> willingness to
> legally defend developers.  Instead I would state that it will be handled
> on a case by case basis as decided by the board.
>
> As with Arnulf, I'm one individual speaking.  The board is meeting 
> shortly
> and may or may not come to some sort of consensus on this question.  
> That would
> be official OSGeo policy (if reached).
>
> Best regards,
>
> PS. In the case of the maptech threat, I think I would have been 
> supportive of
> an OSGeo funded legal response letter asking for details and 
> clarification of
> what laws were violated but it would have been hard to justify going 
> to court
> over the action since the code could be easily removed with little 
> impact.
>
> On the other hand, the board might conclude (as I did to some extent 
> at the
> time) that proving that file formats cannot in themselves be owned is 
> worth
> fighting over, especially if we had a clear cut case.
>
> Best regards,


-- 
Cameron Shorter
Geospatial Systems Architect
Tel: +61 (0)2 8570 5050
Mob: +61 (0)419 142 254

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