[Board] [Fwd: Geotools Contrib Agreement: new draft and coments]
Chris Holmes
cholmes at openplans.org
Tue May 22 21:36:49 PDT 2007
Ok, so Adrian's taken the initiative and cleaned up the document.
I realized that I hadn't seen his exact discussion points that he wanted
us to discuss, but I think most of all of them are basically in line.
The one thing we may want to touch on is patents, as they were in the
first contributor agreement but are not in this one. The contributor
agreement may not be the best place to deal with them.
If the board/Frank is happy with this version I think we can pass it on
to the lawyers for feedback? And then hopefully have it in place and
adopted relatively soon.
best regards,
Chris
-------- Original Message --------
Subject: Geotools Contrib Agreement: new draft and coments
Date: Wed, 23 May 2007 16:26:27 +0200
From: Adrian Custer <acuster at gmail.com>
To: Chris Holmes <cholmes at openplans.org>
Hey Chris,
I've finished editing the new agreement document based on what I could
guess happened at the meeting. Also below are some comments that may
help the lawyers.
Based on what I understand happened at the meeting, I take it:
1. The board agreed to consider a FLA derived document
2. The board wanted to ignore patents
3. I've kept the ongoing assistance clause since I think we can
push it through the Geotools community
4. I've retained the requirement OSGeo keep the source free,
although I specified this was related to source code
specifically
5. I dropped the special rights of the user
6. I committed OSGeo to "consult" with us which, as the current
president Bush demonstrates, means exactly nothing.
7. I take it my version is worth building on
8. I'm sending this to you and it's up to you to push it, via
Frank, to the lawyers (but will be glad to help anywhere along
the process).
For the lawyers:
The attached document is an attempt by Geotools to craft a document
through which our contributors can grant OSGeo copyright over their
work. The document attempts to balance the needs of project
contributors, the OSGeo foundation, and all users and re-distributors of
the source code, documentation and other works of the project.
OSGeo had prepared a COPYRIGHT ASSIGNMENT (OSGeo CA) document:
http://wiki.osgeo.org/index.php/Project_Copyright_Assignment
which suffers from a number of issues.
1. Lumps all contributions as if they were source code
2. Does not consider different legal frameworks
3. Does not use a
4. Uses the term "Intellectual Property"
5. Does not consider re-licensing issues
These are explained in more detail below.
The Free Software Foundation, Europe developed the FIDUCIARY LICENSE
AGREEMENT (FLA):
http://www.fsfeurope.org/projects/fla/
which solves a number of issues with the OSGeo CA.
Issues with the OSGeo CA and the FLA:
------------------------------------
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
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.
V. 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.
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.
Based on these issues, a member of the Geotools community has edited the
FLA into a document suitable for the needs of the Geotools project. This
document is attached below.
Issues with the edited FLA:
--------------------------
The following issues remain with the document:
I. Section 1, last paragraph
Is the explicit definition of subsidiaries still needed? It was taken
from the earlier Individual Contributor Agreement:
http://wiki.osgeo.org/index.php/Contributor_Agreement
II. Section 2, last paragraph
The nature of the geotools project is a bit vague. In a future version
of this document, once Geotools graduates from incubation to be a full
fledged project of OSGeo, we should be able to simplify the wording.
III. Renewal
Because in some countries, e.g. France, it is not possible to make a
contract on future contributions, we will need to develop a document
renewing the agreement document every year. Perhaps you have a
suggestion on how to craft such a renewal document.
cheers,
adrian
!DSPAM:4005,46545d4e270553362379201!
--
Chris Holmes
The Open Planning Project
http://topp.openplans.org
--
Chris Holmes
The Open Planning Project
http://topp.openplans.org
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