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

[Arnulf Christl]

Jody Garnett wrote:
> Arnulf Christl wrote:
>> Cameron Shorter wrote:
>>> Good processes + no money is an acceptable strategy so long as we 
>>> have consciously made this decision and everyone is aware of the 
>>> strategy.
>>
>> Hello,
>> keeping budgets low already is a corporate strategy of OSGeo as far as 
>> I am concerned. I am eager to extend this strategy to Legal Support. 
>> We are not here to fight legal wars but to further Free and Open 
>> Source Software.
> Odd; not what I signed up for. For me an open source foundation is there 
> to protect and promote. Without both I am stuck shopping around to other 
> foundations for help; a bit of a waste of my time.

Hi Jody,
first off please do not confuse the Board of Directors for OSGeo. The members of the BoD are just a lousy bunch of ignorants who have been pushed to the front line by more witty people (the Charter Members). If OSGeo wants to do anything fundamental it needs to be discussed here. Sometimes I also feel an urge to shove things over to Charter Members as I feel that they ware way under occupied for the importance that their name gives them...

All opinions expressed in this mail are my own and have neither been approved by the board nor represent OSGeo foundation procedures blabla. I am also somewhat unhappy that the board is so silent. 

What kind of protection are you expecting? Lets got to extremes to make sure we know what we are talking about. OSGeo will neither be able nor willing to patent code on behalf of a project. Don't laugh - in a proprietary mindset this presents the highest level of protection one can get. As a side remark - as we all very well know even patents are futile in many cases. This is actually not as absurd as it might sound. People around FOSS organizations have suggested many times that one should preemptively patent Open Source software so as to "protect" it from proprietary third party claims. One reaons not to do it was the sheer amount of money and resources one needs to do that. 

This is obviously not the path that I suggest OSGeo should follow as it would acknowledge policies and procedures opposing all basic FOSS principles.

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))).

[...]

>> Whenever someone does want to pick on us we should have a solid ground 
>> and we have this with the incubation guidelines as they are. All that 
>> has to  happen then will then happen, not now.

> I do not believe that; the job of the first projects through the 
> incubation process is to set the guidelines - as such they are still 
> very much a work in progress.

I do not believe that the guidelines are that bad. It is honorable that GeoTools wants to set standards but if you look into other projects you will find that there are many different versions around and one solution will not work for everybody anyway. 

>> As long as we have more or less empty pockets and do not aim at 
>> leveraging money as a major facilitator against anybody and we 
>> continue to build our brand as being a straight group of spatial FOSS 
>> addicts there is little reason to get at us from the legal side 
>> anyway. What would you get? A bad reputation, little or no money at 
>> all and a large bunch of really angry people. Hooray, lets go sue some 
>> Foundations.

> Depends what you are after; as Paul's recent blog shows patents and so 
> forth are a very strange chess game and these older open source projects 
> are a large body of prior art. We have already had to remove code 
> violating patents from GeoTools; and I trust we will need to do so again.

Lets get things separated. Now we are talking about patents again blowing away projects which is something very different to our current issue of giving the copyright to OSGeo.

>> My personal opinion is that a lot of the discussion is beside the 
>> point and we are oftentimes confusing copyright, ownership, 
>> originator's rights, branding and what really makes up a project - the 
>> community around it. We should get a lawyer only when we need one as 
>> we cannot anticipate in which context we will need her. Please never 
>> ever be IANAL again, I am tired of reading that phrase.

> Fair enough; on a pragmatic front the only reason I care about this 
> stuff at all is because I hate getting email to the effect of "We did a 
> review 6 months ago and felt your project was too risky". I am trying to 
> be proactive about contributors fears; so that all this legal stuff 
> stops separating the community.

Cool, where is that review? I want to see it, it should produce exactly the list of issues that we need to address. Currently to me there are no tangible issues except - pardon the wording - some dickering over words in a CLA that nobody wants to sign anyway. 

>> Call me simplistic but I am still of the strong opinion that all we 
>> need to do is get some GeoTools developers go through the project 
>> files, change the Copyright to point at OSGeo and commit. My only 
>> concern was that the developers might feel they lose control and OSGeo 
>> could go berserk and sell the code Copyright to some big bad corporation. 

> Actually we are ready to do just that; we have a "change proposal page" 
> to that effect sitting there ready to go. The GeoTools PMC approved this 
> direction over a year ago.
> 
> What we don't want to do is inflict a codebase on the OSGeo board 
> without them feeling comfortable about what they are signing up for.

That is why we have the incubation process. The code needs to be reviewed and problematic issues have to be addressed. There is no magic involved whatsoever. The only reason why GRASS is not yet graduated is because they don't get their stupid recipes in C reimplemented in a way that will not conflict with that book's copyright. Nerdy nerdy legal stuff that must be addressed nonetheless. 

>> I think it simply cannot. And even if it did it wouldn't make any 
>> difference as anybody can always fork the last GNUed one and go for 
>> it. Can we get over it, please and let GeoTools graduate?

> This discussion; and definition of scope; is exactly what the GeoTools 

Ah, I never heard any definition of scope yet, only legal talk and copyright assignment issues. The scope of a project is way more than that. I asked this question way back when Mapbender graduated without ever getting an answer. What is a Project? Is it the code, the developer community, the name, the brand, the copyright, the documentation, the user community, the mailing lists, the demo data, development platforms, or is it all of it together? Especially the brand is something that is valuable out of itself although it only is a full fledged illusion. Most projects do not bother to protect it in any way, except if some major commercial entity is involved that wants to exploit the name for marketing reasons (be it MOON, YourSQL or BloodHat). 

Again we should not confuse this with the primary goal that we have for GeoTools today which is how to transfer the copyright to OSGeo. 

As long as there is no legal entity that can do this (and the GeoTools PMC is not a legal entity) then it will be required that a project contributor with code repository commit rights goes into the code and adds that the copyright of this software is owned by OSGeo. Whether it is required by US law that this contributor sign a piece of paper or not (as Rich Steele pointed out here:
http://lists.osgeo.org/pipermail/incubator/2006-September/000432.html
is of no relevance to me as a board of directors member accepting this procedure.

> incubation process is supposed to be contributing to the foundation. Yes 
> we could graduate at any time (simply by changing our policy so that 
> contributors retain copyright - like half the OSGeo projects); that 
> would be a disservice to the next project through the gates.
> 
> Cheers,
> Jody

More from that thread comes here:

[BOQ]
Quoting Frank Warmerdam <warmerdam at pobox.com>:
> But while we decided we wouldn't require contributor agreements across
> the board, it was still considered ok for specific projects to require
> them.  Rich felt that MapGuide Open Source would still likely require them
> from it's contributors.  So at that point we are already lacking
> consistency. :-)

rich at richsteele.org wrote:
This is an accurate history.  I believed at the time, and still do,  
that obtaining CLAs is necessary for a well-administered open source  
project.  Others disagreed.  With my (then) Autodesk hat on, I stated  
that Autodesk would only be willing to put MG OS into the foundation  
if committers on the project signed CLAs to ensure the pedigree of the  
code going forward.  Out of this, we decided that the CLA requirement  
would be project specific.  So the inconsistency we now have on the IP  
policy was the price to be paid for keeping OSGeo together (such  
inconsistencies were foreseen in Chicago, so IMO should not be viewed  
negatively).  The decision of whether CLAs will still be a requirement  
for MG OS to be formally contributed to OSGeo is probably best left to  
Jennifer, Gary and other Autodeskers at this point, but I continue to  
believe it is the prudent thing to do.  By the way, Linus, the Apache  
Foundation and most others also think the benefit of CLAs is more than  
dubious and worth the administrative work to obtain.
[EOQ]

Most importantly you can see that lawyers also have to believe and they can even change their belief or believe that they believed something at a time which even then was not accurate. But that is beside the point...

Yet another way to go is to add the OSGeo Copyright notice for the full distribution only and leaving the individual copyright with the contributor. This is done by the ASF:
http://www.apache.org/legal/src-headers.html

[BOQ]
           Licensed to the Apache Software Foundation (ASF) under one
           or more contributor license agreements.  See the NOTICE file
           distributed with this work for additional information
           regarding copyright ownership.  The ASF licenses this file
           to you under the Apache License, Version 2.0 (the
           "License"); you may not use this file except in compliance
           with the License.  You may obtain a copy of the License at

             http://www.apache.org/licenses/LICENSE-2.0

           Unless required by applicable law or agreed to in writing,
           software distributed under the License is distributed on an
           "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY
           KIND, either express or implied.  See the License for the
           specific language governing permissions and limitations
           under the License.    
[EOQ]

This is done in an accompanying Notice file:

[BOQ]
0. Every Apache distribution should include a NOTICE file in the top directory, along with the standard LICENSE file.
1. The top of each NOTICE file should include the following text, suitably modified to reflect the product name and year(s) of distribution of the current and past versions of the product:

                Apache [PRODUCT_NAME]
                Copyright [yyyy] The Apache Software Foundation

                This product includes software developed at
                The Apache Software Foundation (http://www.apache.org/).
[EOQ]

This is all that we can do for now. If this is not enough for the board to digest until the meeting we will have to wait until next board meeting. I am sorry to be late but we rebuilt our servers this week and everything went wrong so that it took more of my time than expected. 

Best regards, 
Arnulf. 

PS:
We should move off discuss, this is more likely an Incubation topic.