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RE: [ba-unrev-talk] Licensing of the unrevii email archives

This is Mei Lin Fung, chair of the Bootstrap Alliance Core Planning
Committee (CPC).    (01)

I wanted to let you know that we are discussing what to do about the
situation, within the CPC.    (02)

Luckily, Karen Risa Robbins of AmTech is on the CPC and herself a
lawyer.    (03)

AmTech was originally spun out of NASA to host private/public consortia
particularly involving public and federal IP. Bootstrap Alliance itself
is hosted by AmTech because it falls under this kind of umbrella and
AmTech's experience over the last 10 years in this arena is invaluable
to us as we move forward.    (04)

In the past, the Bootstrap Alliance had taken a backseat to the
Bootstrap Institute, Doug's own organization. Because of Bootstrap
"not for profit" status, we are moving forward with encompassing
Bootstrap's "go forward" activities" under the Bootstrap Alliance.    (05)

The issues raised below and others are being raised and addressed one by
one. The CPC meets about 3-4 times a month, usually weekly on Thursday
mornings.    (06)

I ask for your understanding that as all CPC members are volunteers, it
is not possible to make as much progress as quickly as some might hope. 
Nonetheless we make steady progress and appreciate your continued input
and support.    (07)

Mei Lin    (08)

-----Original Message-----
From: owner-ba-unrev-talk@bootstrap.org
[mailto:owner-ba-unrev-talk@bootstrap.org] On Behalf Of Paul Fernhout
Sent: Tuesday, April 30, 2002 8:14 PM
To: ba-unrev-talk@bootstrap.org
Subject: Re: [ba-unrev-talk] Licensing of the unrevii email archives    (09)

"Peter P. Yim" wrote:
> P.S.  For those who joined the discussion more recently, 
> I was responsible (with no regret) for
> crafting the version of the UnRev-II "Permission to Use" 
> statement as it appeared for the Stanford
> Colloquium.  -ppy    (010)

For reference -- "Permission to use" is here:
  http://www.bootstrap.org/colloquium/permission.html    (011)

A previous post I made on this issue (Tue Aug 29 2000):
  http://www.bootstrap.org/lists/ohs-dev/0246.html    (012)

I hadn't realized (or remembered?) the "permission to use" statement had
drafted by anyone involved with BI -- I had assumed Stanford (and
Stanford's lawyers) had generated it and BI had just agreed to it. I
still think the liability indemnification provision, especially as it
relates to potential unintentional software patent infringement is a
major hurdle to overcome if volunteerism is to be encouraged. I know of
no other open source or free software project that expects such
indemnification from contributors. I do understand and accept the need
to obtain permission to show physical likenesses in a TV broadcast, or
the need to obtain permission to republish written contributions under a
specific license. A statement like "to the best of my knowledge what I
contribute is non-infringing" is OK for due diligence, as is "I give BI
and Stanford a right to republish the contributions in various specific
ways etc. or to be used under specific licensing terms" but the
"permission to use" clause goes way too far towards protecting BI and
Stanford at the cost of the volunteers takign on financial risk -- if
the intent is to encourage long term volunteerism. Note that book
publishers have been using similar indemnification clauses in "standard"
book contracts lately as detailed in this article:
and the article's author is not too happy about it (and this is for paid
authors).    (013)

If BI or Stanford is concerned about infringement claims, other
options exist like taking out liability insurance or forming a legally
separate organization with limited liability. I am looking at forming a
non-profit mainly just to wrap around for my own work just for this
limited liability reason. Software patents are just too unpredictable
and too cavalierly granted by the USPTO despite prior art to not take
this liability issue seriously. I can accept the choice of Apache-like
license; I can accept granting broad permissions for using works I
create or co-create; but I can't accept incurring unlimited liability by
indemnifying Stanford and BI for their use of gifts of code (or, for
that matter, content).     (014)

Also, given the phrasing in "permission to use" for "subsequent
activities", it is not clear to me where that provision ends, even if
the mailing list is switched to a new location such as hosted by BI.
Based on my reading of "permission to use" any future mailing lists
hosted by BI now or forever would be covered by it as they could be
considered "extended activities", as could potentially (although it
would be a stretch) any mailing lists in any way similar which were
hosted by colloquium participants. It is potentially in Stanford's short
term financial interests to try to define involvement as broadly as
possible -- since where and when do the colloquium's "extended or
subsequent related activities" end? It may require a written document
from Stanford disclaiming further extension of this agreement to ever
produce a forum hosted by BI or others free of "permission to use" as it
was originally written. As a practical matter, once the liability issue
is resolved, the OHS project will become more attractive to volunteer
developers.     (015)

"Permission to use" and the potential liability it creates is the major
reason I essentially stopped posting to the list over a year ago --- to
minimize any perception that my Pointrel data repository system (which I
have been working on and off on for over twenty years) or any other free
software I work on could in any way be considered "an extended activity
of the colloquium" and subject to the indemnification provision. I am
posting again now in large part because I think (hope) there is a chance
to get these issues resolved to the benefit of encouraging more OHS
development.    (016)

Obviously, is is likely the indemnification part of "permission to use"
is unenforceable because such an agreement is not signed, but I prefer
to not risk that uncertainty. Some might think I am being picky, but as
a point of fairness, if BI and Stanford can't minimize this liability
risk for volunteers, then they won't earn my respect or loyalty -- it's
like I was asked to work for free on software in a building with exposed
live electrical wires dangling everywhere -- what does that say about
the organization's valuing of my life or my contributions? Likewise,
agreeing on a license like Apache or whatever but not then actually
following through and using it for stuff like the email archive also
doesn't promote respect as I keep wondering, why aren't the archives put
under such a license if BI really means to use it (where open source
licensing is presumably mainly what "permission to use" exists to
enable)? Some delay is perhaps understandable, as I think it may take
signed legal documents from both Stanford and BI to do so. But, it's
been two years and these issues are not resolved...    (017)

I dislike having to harp on this issue, but the excellent work done by
Chris Dent and Kathryn La Barre is exactly what this OHS/UnRevII forum
should be about
but the current state of affairs leave the two of them in danger of
running into some of those live electrical wires still dangling from
this forum.    (018)

Meaning no disrespect for your contribution in authoring this, but will
someone at BI please just get an electrician (lawyer) in and fix the
legal wiring of "permission to use" to strike a better compromise for
volunteers and get Stanford and BI to sign off on it. If BI can't find a
lawyer to do the needed paperwork betweeen BI and Stanford pro-bono to
remove the indemnification and/or clarify and limit what "extended and
subsequent means", I'll pledge US$300 towards such legal fees, as I
would like to see the indemnification part removed as showstopper to BI
OHS development on an open source basis.    (019)

Should your reading of "permission to use" or knowledge of the intent
behind it differ from the issues I have outlined, please let me know.    (020)

-Paul Fernhout
Kurtz-Fernhout Software 
Developers of custom software and educational simulations
Creators of the Garden with Insight(TM) garden simulator
http://www.kurtz-fernhout.com    (021)