[OSGeo-Discuss] Software Copyright ownership

[Allan Doyle]

On Dec 13, 2009, at 7:26 PM, Christopher Schmidt wrote:

[...]

>> My private opinion on this issue is pretty clear: Move your Copyright to  
>> OSGeo - all of it including trademarks, logos and designs. That is what  
>> OSGeo is there for. Get it out of corporate reach, it is none of their  
>> business (great analogy, hehe). 
> 
>> Is their any advantage of keeping the  Copyright under a private property?
> 
> Depends. There may be more trust in some private properties than others. 
> So far as I'm aware, OGC is a private property, you you argue that putting
> KML under OGC was a good thing.
> 
> OSGeo is also a private property. It is a foundation, managed by an elected
> board -- but so are most companies. (OSgeo isn't even, so far as I know,
> a registered nonprofit organization at this time.) What makes OSGeo a better
> steward for code than organizations which have managed code for years --
> or in the cases of some projects, decades?
> 
>> What I get back from corporate users of Open Source software these days  
>> is the same, they would rather have the Copyright sit with a (real)  
>> non-profit like OSGeo than anything else.
> 
> How is OSGeo a real non-profit?  
> 
> I don't see a strong reason to change the methods of projects that have
> successfully managed many years of code contributions. The best people
> to make those decisions are people who have successfully managed those
> projects.
> 
> It's great that OSGeo now feels comfortable managing the copyright of 
> projects, but it's not clear to me what that actually means. Who is the
> person who controls the copyright? Who makes decisions about how it is
> managed -- and what happens if someone disagrees with those decisions?
> 
> I think that it would be lovely to create an environment where projects
> feel that giving copyright over to OSGeo makes their lives -- as project
> managers -- easier. I'm not convinced that is currently the case; the lack
> of obvious documentation on how projects should give copyright to OSGeo,
> and what it means when it happens, seems to me like it creates a void in
> which projects might feel uncomfortable about giving copyright to OSGeo,
> for fear of what that might mean. Improving that, through solid documentation,
> seems a great first step in making projects feel more comfortable with
> that process; this is certainly true for me as a contributor to OpenLayers.
> 

I am not a lawyer. But here's some info I believe is largely correct.

Regarding keeping the copyright in a non-profit -- in the US, a 501(c)(3) has no "owners", there is no stock, and as such, all the assets of the corporation are retained within the corporation under the control of the Board of Directors. The Board of Directors can either (a) disposes of the assets or (b) dissolve the Corporation.

Disposing of the assets must be done in a way that doesn't benefit individual directors, their families, or close associates. (OSGeo has this spelled out in its Certificate of Incorporation in Article X [1])

Dissolving the Corporation must be done as spelled out in either the Bylaws or the Articles of Incorporation (in something known as a "dissolution clause") and essentially involves turning the assets over to another 501(c)(3). (OSGeo has such a clause in Article IX [1])

Disposing of assets could take the form of a sale to a private party, with the proceeds going to the Corporation. But I would think that the Board of Directors would have to document how that advances the non-profit purpose of the Corporation.

Now back to opinion.

In any case, I suspect that there's plenty of room for a Board of Directors to do the wrong thing with any asset (copyrights, property, cash, etc), either intentionally or unintentionally without getting in trouble, simply because no one notices.

If someone disagrees with a decision taken by the Board, I don't think there is any recourse as long as the Board didn't do anything illegal. If someone thinks the Board is about to do something he or she disagrees with, that person would have to try to influence that action by following the rules in the Bylaws [2] to either change the composition of the Board, remove one or more Board members, or get enough support to make the Board think either of those things might happen and thus decide not to do something that would cause the individual to take action. (Assuming, of course that simply appealing to the Board to not take the action didn't work).

This is the stuff of "boardroom dramas" that you read about in the news... with any luck at all, OSGeo noodles along as one big happy family. But it's good to know what the legal parameters are.

	Allan

[1] http://www.osgeo.org/content/foundation/incorporation/osgeo_certificate.pdf
[2] http://www.osgeo.org/content/foundation/incorporation/bylaws.html