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

[Frank Warmerdam]

Arnulf Christl wrote:
> 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))).

Arnulf / Cameron,

I can imagine two broad areas of litigation possible.

One is pursuing violators of the requirements of OSGeo open source software.
So, for instance, if XYZ Corp embeds and improves GeoTools in their proprietary
software and does not offer the updated source as required by the GeoTools
LGPL license.  Rather than expecting Jody to personally litigate again XYZ
corp, it would be nice if the foundation could do so on the projects behalf.

Hopefully such violations would be normally handled by educating the license
violators, but in the worst of cases I can imagine OSGeo considering
litigation.

The other side of things is defending OSGeo projects and developers against
litigation by others.  As a concrete example, I was legally threatened
several years ago by MapTech who made vague claims that the BSB format was
their intellectual property and that I was to remove all my related
resources (http://home.gdal.org/projects/bsb/ipi.html).

In a situation like this, it is possible that OSGeo could step in to defend
the individual developer since individuals can't easily defend themselves.
Note that MapTech wasn't looking for a pool of money.  They were just wanting
to interfere in what the project was doing for their own business reasons.

Other scenarios might be claims from organizations that some of their
copyrighted code has been improperly used in a project, violation of
trademarks, patent violations and so forth.  Keep in mind that a legal
threat doesn't have to be all that well founded to have a chilling effect.

To me the question is to what extent OSGeo should structure itself and it's
project to take on legal risks of this sort and shield developers.  Lacking
a detailed consensus my expectation has been that the foundation would not
go out of its way to structure projects such that OSGeo would be most likely
legal target, but that the foundation would review any litagation that does
occur for project and *consider* getting involved in defence of the developer
or project.  The decision might include factors such as whether we believe
the developer is in the wrong (or at least in some not so well defined gray
area), whether the issue is strategic or would be better off dealt with
by avoidance (ie. remove offending material), how much financial resources
we have available to deal with the legal issue, and what the risk to the
foundation as a whole of getting involved would be.

I am nervous about making guarantees of defending developers, or prosecuting
license violators as we could easily get dragged into expensive litigation
that is not really sensible for us to be wasting resources on.

If we were to take my approach (a sort of default approach perhaps) I would
be explicitly not agreeing to make a clear statement on our willingness to
legally defend developers.  Instead I would state that it will be handled
on a case by case basis as decided by the board.

As with Arnulf, I'm one individual speaking.  The board is meeting shortly
and may or may not come to some sort of consensus on this question.  That would
be official OSGeo policy (if reached).

Best regards,

PS. In the case of the maptech threat, I think I would have been supportive of
an OSGeo funded legal response letter asking for details and clarification of
what laws were violated but it would have been hard to justify going to court
over the action since the code could be easily removed with little impact.

On the other hand, the board might conclude (as I did to some extent at the
time) that proving that file formats cannot in themselves be owned is worth
fighting over, especially if we had a clear cut case.

Best regards,
-- 
---------------------------------------+--------------------------------------
I set the clouds in motion - turn up   | Frank Warmerdam, warmerdam at pobox.com
light and sound - activate the windows | http://pobox.com/~warmerdam
and watch the world go round - Rush    | President OSGeo, http://osgeo.org