[Fwd: [Incubator] Re: GPSD and OSGEO]

Arnulf Christl arnulf.christl at ccgis.de
Thu Mar 16 15:19:43 EST 2006

In case you missed the discussion on the incubator list, this is a 
comment by Frank on a comment by Eric S. Raymond.

-------- Original Message --------
Subject: [Incubator] Re: GPSD and OSGEO
Date: Mon, 13 Mar 2006 22:37:35 -0500
From: Frank Warmerdam <warmerdam at pobox.com>
Reply-To: incubator at incubator.osgeo.org
To: esr at thyrsus.com
CC: board at board.osgeo.org,  Incubator at incubator.osgeo.org
References: <200603122303.k2CN36r8021556 at snark.thyrsus.com> 
<E03AE798-611E-44A8-95C8-F01A114D29E0 at collab.net> 
<44159192.1010908 at pobox.com> <20060313163404.GA25855 at thyrsus.com>

Eric S. Raymond wrote:
> Having been through this with respect to some OSI business, I strongly
> recommend *against* this step.  The move by some projects to requiring
> contributor agreements is, is, in my opinion, a serious mistake; and
> I've been backed up in this by advice of OSI's counsel.
> When the law is as unsettled as it is now with respect to open-source
> software, judges' perceptions of community practice often shape how
> they will rule.  In fact, it is doctrine in contract law that judges
> are *required* to take observed community practices into account.
> As the law now reads, we can argue that contributing to an open-source
> project is an implicit quit-claim of whatever rights are required to
> issue under the project license, and almost certainly win.  Courts do
> not look kindly on poisoned gifts; there are precedents that help in
> common law.
> On the other hand, if major projects shift towards requiring
> contributor agreements, hostile parties could treat that as a
> concession that there is no such quit-claim.  This would mean instant
> peril for all projects that do *not* have contributor agreements.
> Furthermore, contributor agreements are a poor fit for our threat model.
> The major IP liability risk for open source is not contributors suing
> projects, it's third parties suing over allegedly protected material
> in contributions.  Contributor agreements are no help there.
> I believe the best strategy for the community at large is to reject the
> bureaucratic overhead of contributor agreements, and instead to argue,
> if it ever comes to a court test, that the act of contributing to a project
> constitutes acceptance of the project license terms.
> Please take this evaluation seriously, as I have researched this
> question most thoroughly in connection with my OSI duties.


I appreciate your input, and I have passed it on to the Incubator Committee
as well.  I must admit most of the developers were quite sympathetic to the
idea of not requiring contributor agreements!

The draft contributor agreements, along with an FAQ on reasoning and
interpretation has been put up at:

In this matter we have been heavily influenced by the approach of Apache
which I believe does require contributor agreements.

I would note that our contributor agreement is intended to do a bit more 
just ensure the foundation has the right to redistribute the code though it
does not actually include copyright assignment.
  o It attempts to alleviate patent claims on code contributed.
  o It attempts to give the foundation the right to relicense the code.
  o It attempts to give the foundation "standing" in court to defent the

The agreement was drafted by Rich Steele, our acting legal counsel (a staff
lawyer with Autodesk - put not at all your typical corporate lawyer). I 
speak to all the details myself being a humble software developer.

My biggest concern with the case you made above is that it seems to
address the risk of growing use of contributor agreements to the general
open source community, while not really addressing how we minimize risk to
OSGeo and our contributors.  I'm not sure I would be fulfilling my fiducial
responsibilities if I put the foundation at risk in the hopes of avoiding
a more general erosion of quit-claim by contribution.

Would you be willing to spend a bit of time working with Rich and the 
rest of
us on the points you have made?  I would certainly appreciate it.

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 OSGF, http://osgeo.org

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