Frank,
I like the way you define the different areas of legal risk OSGeo and
members face, and suggest actions that OSGeo should take under these
circumstances. Your suggestions make sense to me.
To complete the loop, I suggest:
1. Legal review of your suggestions to confirm you have the key issues
covered.
2. Cost and probability estimations be assigned to the different
scenarios, probably as part of legal review.
3. Board vote to accept plan.
4. Budget allocated for likely costs. Eg: Developer access to lawyer to
advise on consequence of an action against them, but not guaranteed to
be defended in court.
5. Legal stance documented on a web page. (Converting this email to HTML
would be sufficient for me).
Frank Warmerdam wrote:
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,
--
Cameron Shorter
Geospatial Systems Architect
Tel: +61 (0)2 8570 5050
Mob: +61 (0)419 142 254
Think Globally, Fix Locally
Commercial Support for Geospatial Open Source Software
http://www.lisasoft.com/LISAsoft/SupportedProducts.html
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