[Board] [Fwd: Geotools legal matters for the OSGeo board meeting]
cholmes at openplans.org
Fri May 18 07:18:09 PDT 2007
-------- Original Message --------
Subject: Geotools legal matters for the OSGeo board meeting
Date: Fri, 18 May 2007 13:48:18 +0200
From: Adrian Custer <acuster at gmail.com>
To: Chris Holmes <cholmes at openplans.org>
as promised, my take for the board.
Members of the OSGeo Board,
Thanks for taking up this issue during your board meeting. Sorry for the
repetition here from that in earlier emails and other documents. I am
trying to be absolutely thorough one final time.
As Chris Holmes stated, the major remaining step in Geotools incubation
is sorting out our legal situation. We have been about as far as we
could on our own and with the help of Frank. We now turn to you to make
the final decisions on the contents of the legal document we hope to
have most Geotools contributors sign. The remaining steps in our
incubation process are approximately:
1) Craft jointly with OSGeo an agreement document.
2) Get as many contributors as possible to sign the document.
3) Refresh our code provenance review.
4) Tag our SVN.
DURING YOUR MEETING YOU SHOULD EITHER AGREE ON A DOCUMENT TO OFFER
US GEOTOOLS CONTRIBUTORS AS A COPYRIGHT ASSIGNMENT FORM OR COME UP
WITH A SPECIFIC PLAN ON HOW WE CAN DEVELOP SUCH A DOCUMENT.
The contributors to Geotools want to make OSGeo the legal custodian of
the Geotools code because OSGeo is a real legal entity (unlike our
Project Steering Committee). Our conclusion from a year ago was that we
should try to get as many of the past contributors as possible to grant
OSGeo copyright and require future contributors to grant copyright. This
will make OSGeo the custodian of most of the code and should be enough
to give standing to OSGeo in any legal setting.
We need a document approved by the OSGeo board through which we can
assign copyright over our contributions to the OSGeo foundation. We have
spent the past year trying to craft such a document but some of the
decisions come from your side and those decisions, presented at the
bottom, you must make as a collective board.
As a result of lots of overlapping work, we actually now have two
documents which serve as models for our agreement:
1) OSGeo eventually proposed the COPYRIGHT ASSIGNMENT (OSGeo CA)
2) The Free Software Foundation Europe has recently proposed the
FIDUCIARY LICENSE AGREEMENT (FLA):
Unfortunately, the former document doesn't actually meet our needs as I
explain in detail below. I therefore started from the latter and tried
to alter the FLA to be an OSGeo document that meets our common needs. My
draft for such an agreement is the the FLA-avc version:
3) The FLA-avc version, in PDF and ODT formats
We need to jointly agree on the remaining points to settle, finish the
writeup of the document, you probably will want to run it by your
lawyers, and then OSGeo needs to formally adopt it as a document you
will offer us for signature.
Please understand my rejection of the OSGeo document is made in good
faith rather than some desire to be special. We all think highly of
OSGeo, of each of you board members, and of the intents of everyone in
the community. Our hesitation and attention to detail arises only so as
to do as good a job as possible and lay a good path for any future
projects which need to follow our lead. Apparently, Geotools is either
somewhat unique, more careful, or appears to be the first to raise
particular issues making this process harder than it will hopefully be
in the future.
The Interests of concern:
Protect everyone from lawsuits by making the situation
crystal clear while releasing code, docs, and examples
using different free software licenses and attempting to
minimize the commitment of each participant.
- to maintain their contributions of code as free software under
the LGPL or under essentially identical terms
- to maintain their contributions of documentation as free
documents under the FDL or under essentially identical terms
- to maintain their contributions of example code under terms
as close to the public domain as practical
- to retain the right to use their own contributions for any
other purpose they choose
- to protect from lawsuits
- to protect from lawsuits
- to act as a legal buffer between plaintiffs and contributors
- to empower with standing to enforce the license on behalf of
- to grant the 4 key freedoms: use, copy, modify, and distribute
- to protect from lawsuits of derivative users
Specific issues of concern:
I. Room for different types of contributions:
Neither the OSGeo CA nor the FLA consider explicitly the three
different types of contributions which are currently going into
Geotools. We have contributions of code to be GPL'ed,
contributions of documents to be FDL'ed, and contributions of
demonstration code/website contents to be released under BSD (we
would like to have this in the public domain but there is no
legal way for us to place it there).
Even my current draft doesn't deal quite well enough with this
II. Consideration of different Legal frameworks
The FLA, unlike the OSGeo CA, explicitly considers the different
legal frameworks worldwide. The OSGeo CA is particularly bad in
this respect since it tries to do something which is inherently
impossible, put the 'moral rights' of the Napoleonic code (legal
systems derived from the French) into the framework of common
law (legal systems derived from the English). The OSGeo CA
This assignment includes all rights of
paternity,integrity, disclosure and withdrawal and any
other rights that may be referred to as “moral rights,”
“artist’s rights,” “droit moral,” or the like.
however, "moral rights" are exactly those rights which *cannot*
be assigned but are retained by the author even when she assigns
all her other "patrimonial" rights to someone. For the
followed immediately by
for an explanation of how the Civil law system thinks about
these things. On this issue the FLA states:
Beneficiary’s moral or personal rights remain unaffected
by this Agreement.
which is the correct reasoning in the Civil Law system.
The OSGeo document also doesn't consider contributions which are
made by a user and are legal but cannot involve copyright. A
government worker in the US can make contributions to
Geotools/OSGeo since their work is in the public domain but
cannot assign copyright over that work (although OSGeo can
subsequently claim copyright over the work as altered and
incorporated into the code base). A government worker in Canada
can make contributions but the Crown will actually retain the
III. Document Structure
The OSGeo CA document is not visually structured as a two-way
engagement although that is really what is going on. The
contributor is granting copyright and OSGeo is immediately
re-licensing. The FLA makes this dual exchange clear by having
two indented paragraphs separating out the two parties and a
section each for the commitment of each side.
IV. Intellectual property
Paraphrasing Richard Stallman:
Anyone using the terms 'Intelectual property' is either
confused themselves or is trying to confuse you.
Indeed, this is sloppy shorthand for 'all that legal stuff
around rights like property rights but for things which are not
in reality exclusive'. Since the idea groups together things
which are totally different---copyright, trademark, patents---we
would do well to steer very clear of the term, most especially
in a legal document. The FLA doesn't use the term but the OSGeo
V. Contributor's rights to their own contributions
Ideally, a contributor, despite granting OSGeo copyright on the
contribution, would continue to have very broad rights over
their own contributions. I think we would all like to have
contributors feel they can use their own code in whatever manner
they choose even after they contribute it to OSGeo. The FLA
makes this distinction while the OSGeo CA does not.
None of the documents cited so far consider Patents. If we
consider the needs of the eventual third-party users and
re-distributors of our code, we might want to consider this
explicitly. We may want to force contributors to assert that
their contributions do not contain any patents of their own.
This would protect all users and re-distributors from submarine
patents, i.e. silent contributions of patented code that is then
asserted later in court. Note this is addressed in the original
document we started from, the OSGeo Individual Contributor
Frank may be right that it is best *not* to consider patents
jointly with copyright assignment but since OSGeo takes both
perspectives in its two different documents clearly both
possibilities are possible.
This could be incorporated through a paragraph much like the
assertion that the contribution is not covered by 'exploitation
The “contributor” therefore warrants, represents, and
guarantees that the “contribution” covered by this grant
is free of any
of his or her employer’s exclusive exploitation rights.
VII. Ongoing Assistance
This language exists in the two OSGeo documents but not in the
This issue raised some resistance in the Geotools community but
that seems to have been an informed response on the order of "I
don't want to lift a finger more than contributing code". It
seems we could easily accept this in the document if it is
wanted by the OSGeo board.
Part of the reason to assign copyright to OSGeo is to provide
some way to re-license the code under a new version of the GPL,
e.g. GLPv3. However if OSGeo has the right to re-license, it
necessarily has the right to re-license under any license
including a proprietary license. While no one images OSGeo will
do so, it doesn't hurt to make this explicit.
This raises two issues: (1) How do we make this explicit and (2)
how does OSGeo decide to re-license.
The first issue can be solved in two ways: explicitly in the
document like in the FLA or ignoring the issue in the document
and trusting OSGeo to remain constrained by its charter.
Discussions with Frank and others at various times, seemed to
suggest that the second solution would be easier for you all to
agree to while the first solution is preferred by the Geotools
The resolution of the second issue seems to revolve around
including language of the OSGeo decision being reached 'in
consultation with' the Project Management Committee'. To have
our cake and eat it too, we Geotools contributors would like to
imagine OSGeo would only consider a re-licensing at the request
of the PMC and re-license to the license picked by the PMC but
that OSGeo could override the PMC or operate without it if the
PMC became blocked or disfunctional. In practice this is what is
liable to happen so it is unclear to what extent this needs to
be spelled out.
Ideally, during your meeting you will reach the following decisions:
1. If you are willing to work with us to craft a different form of
the existing OSGeo Copyright Assignment document.
2. If you want to ignore or explicitly deal with submarine patents.
3. If you want to require language for Ongoing Assitance by
4. If you are willing to explicitly commit to keeping the code
available under a 'free' or 'open source' license.
5. If you are willing to explicitly grant the user broader rights
to their own contributions than they would get by being a
licensee of the OSGeo code.
6. How you want to address re-licensing.
7. If you are willing to build on my version of the Fiduciary
8. What process you wish to adopt going forward which will lead to
1. completion of the text,
2. review by your lawyers, and
3. final approval of the completed document by the board
For the latter, I hope you can make the remaining process as explicit as
possible so that we can have a pretty good assurance that this process
will be completed quickly. Ideally you would empower someone to see this
through, possibly, if you feel the need, requiring a final adoption vote
of the completed text during a subsequent meeting.
One final thing you might want to consider in your board meeting is how
you can use this experience/document in future OSGeo projects. You might
choose to revise your Copyright Assignment document in the light of some
of these issues, or drop that agreement in favour of a version of the
final document we craft together. I would hope some of the pain of this
effort could go to alleviate future work.
that's about all I can pull together on short notice. I think this
covers the main points for you to decide. I would be glad to help
whomever is assigned to bring this through to completion,
The Open Planning Project
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