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

Arnulf Christl arnulf.christl at wheregroup.com
Fri May 18 10:03:09 PDT 2007

this mail was a little late for me to read before the last board meeting
(42 minutes). GeoTools explicitly asks us to decide on some things so they
can carry on with Incubation. I suggest we go through them in the list so
next time we meet we can motion and approve what has to be done.

More inline.

On Fri, May 18, 2007 16:18, Chris Holmes wrote:
> -------- 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.
> --adrian
> 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)
>          document:
> http://wiki.osgeo.org/index.php/Project_Copyright_Assignment
>          2) The Free Software Foundation Europe has recently proposed the
>                  http://www.fsfeurope.org/projects/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
>          http://docs.codehaus.org/download/attachments/73072/
>          FiduciaryAgreement.avc.v1.pdf?version=1
>          and
>          http://docs.codehaus.org/download/attachments/73072/
>          FiduciaryAgreement.avc.v1.odt?version=1
> 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.
> Contributors:
>          - 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
> Foundation:
>          - 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
>          users
> Users/Redistributors:
>          - 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.

This touches an issue brought up by the GRASS PSC. What is the scope of a
project? Does it include data, website contents, community, brands, etc.
There is no real definiton for any of the projects.

> 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
>          states:
>                  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
>            http://fr.wikipedia.org/wiki/Droit_d'auteur#Droit_moral
>          followed immediately by
>            http://fr.wikipedia.org/wiki/Droit_d'auteur#Droit_patrimonial
>          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
>          copyright.
> 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.

+1 from Arnulf to not use this term in any context.

> 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
>          Agreement:
>            http://wiki.osgeo.org/index.php/Contributor_Agreement
>          or
>            http://wiki.osgeo.org/index.php/
>                         Individual_Contributor_License_Agreement_%28CLA%
>          29
>          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
>          rights':
>                  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.

I support to drop any references to patents altogether in copyright
assignment. We may have to deal with it, but this can happen separately to
GeoTool's graduation.

> VII. Ongoing Assistance
>          This language exists in the two OSGeo documents but not in the
>          FLA.
>          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.
> VIII.Re-licensing
>          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
>          contributors.

Version one will require to change copyright and licensing twice, once on
the OSGeo level and once for the GeoTools project. If the Charter binds
OSGeo it can react to changes in licensing or legislations once and
resolve the problem for all its projects. If the project's license needs
to be revisited individually it just ads overhead work. One reason for
OSgeo was to be able to deal more efficiently with stuff that sucks.

>          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.

Well, it is nicely spelled out now, so there is no need to throw it away

> 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.

(the following are votes from Arnulf assuming that we had moved and seconded)


>       2. If you want to ignore or explicitly deal with submarine patents.

Ignore patents and remove corresponding wording from th F/CLA.

>       3. If you want to require language for Ongoing Assitance by
>          contributors

(I don't really understand what this is supposed to be good for?)

Drop it, if it is no-goer for GeoTools. Keep it if we can use it to appear
more long lasting and can make us of it in marketing.

>       4. If you are willing to explicitly commit to keeping the code
>          available under a 'free' or 'open source' license.

I will happily commit to keep it under a Free and Open Source Software

Currently OSGeo uses OSI-approved licenses. So as soon as it would
relicense to anything else it would lose the project as it cannot have
projects with non-OSI approved licenses because of its own rules. Cool.

>       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.

This sounds a little like a dual copyright holder?! In European legal
background (thanks for your help above) there is a differentiation between
originator's (Urheber) rights and exploitation rights (Verwertungsrecht).
Both are contained in the one English word "Copyright". The originator's
rights can not be sparated from the code (work of art, etc.) ever. It is
part of the work. Exploitation rights initially lie with the contributor
but he can give them away. From my perspective this covers what you
describe above.

>       6. How you want to address re-licensing.

>From my point of view this is to keep the door open for the future. We saw
many trouble and time going into changing from GPL 1 to 2 and want to
avoid something similar to happen again.

(((As an aside: OSGeo is just a bunch of people and source code flocking
together. If anything really goes amiss make a fork and be happy. Where is
the issue? We are building a paper tiger to show off how big we are, is
that not it in the end?)))

>       7. If you are willing to build on my version of the Fiduciary
>          Agreement document.

+1 from Arnulf

>       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

We will need every board member to read this email and the documents, do
some thinking and approve. This will take some time. A weekly reminder
will hopefully help to accelerate this process.

> 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.

Again, the plan is to make things easier for all of us. Thanks for your
detailed work and shurely it will be a template for anybody to use (if you
agree to publish it under a Free and Open...).

> 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,
> sincerely,
>    Adrian Custer


> !DSPAM:4005,464d929947572090977483!
> --
> Chris Holmes
> The Open Planning Project
> http://topp.openplans.org
> _______________________________________________
> Board mailing list
> Board at lists.osgeo.org
> http://lists.osgeo.org/mailman/listinfo/board

Arnulf Christl

More information about the Board mailing list