[Board] [Fwd: Geotools legal matters for the OSGeo board meeting]

Chris Holmes 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>

Hey Chris,

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.
         5) Graduate


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
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:
         Short version:
                 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
         multi-contribution situation.

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
         francophone, see
         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
         CA does.

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.

VI.  Patents

         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.

Board Decisions:

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
         Agreement document.
      8. What process you wish to adopt going forward which will lead to
         the rapid:
              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,

   Adrian Custer


Chris Holmes
The Open Planning Project
-------------- next part --------------
A non-text attachment was scrubbed...
Name: cholmes.vcf
Type: text/x-vcard
Size: 294 bytes
Desc: not available
URL: <http://lists.osgeo.org/pipermail/board/attachments/20070518/97e4371f/attachment.vcf>

More information about the Board mailing list