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

Peter-    (01)

Thanks for the comments. One point of contention:    (02)

"Peter P.Yim" wrote:    (03)

> 2.  The indemnification clause was there to protect Doug/BI (and Stanford
> too). It's there mainly to keep everyone honest and should not be construed
> as a show stopper. To use your analogy, it should, instead, help keep the
> playground safe from stray "live" wires.    (04)

Safe for whom? And as far as honesty, the biggest issue is unintentional
infringement of software patents and related liability.    (05)

Here is the position of the American Society of Journalists and Authors
on indemnification clauses:
"The proliferation of indemnity clauses, especially in the magazine
world, appears to be another case of lawyerly overkill. Do not get
caught without a flak jacket. Insist on modifying the contract terms
until you feel the risk you are assuming is acceptable. ... If a
publisher settles and  you have signed an indemnity agreement, you may
be sent a bill for the settlement amount. Sure, you can try to fight it
-- by continuing your part of the lawsuit in hopes of proving at trial
or on appeal that you were not at fault, for example, or by arguing that
your agreement with the publisher is unenforceable. But it can be a
costly battle."    (06)

To summarize, for volunteers:
* "non-infringing to the best of my knowledge" -- Fair!
* "I'll sign a blank check if someone claims infringement" -- Unfair!    (07)

I'm sorry, but as I have stated before on this list, I just don't feel
it prudent for me to ever contribute any code to the OHS on that
indemnification basis because of unlimited liability associated with
software patents (especially ones being issues for prior art). Were I
negotiating that as a contract to do paid work, where I would be making
a somewhat different risk vs. reward estimate, at the very least my
lawyer would (and has) insist on provisions like controlling the
infringement defense, the option to replace the code with non-infringing
code, and so on.     (08)

In another post in this thread, Mei Lin Fung mentions "Luckily, Karen
Risa Robbins of AmTech is on the CPC and herself a lawyer." It would be
nice if she could spell out the implications in detail of this
indemnification clause for volunteers and put a dollar limit on their
liability. From my reading of this, a software patent issued years after
OHS code was released could cost a volunteer millions of dollars (or
more) of out-of-pocket costs reimbursing Stanford and BI (who might
choose just to settle with the patent owner). For example of British
is in the process of obtaining settlements for people using
hyperlinks(!!!!) shows how messed up the patent system is (since clearly
Doug has prior art) -- and yet financially it would be prudent for BI
(if say I was the one who wrote the particular hyperlink code) to just
settle with British Telecom for say $100,000 for BI's use of hyperlinks
the OHS and pass the settlement and legal costs on to me if I was the
volunteer writing the code.     (09)

If BI has a lawyer specializing in copyrights and patents who in his or
her professional capacity says in writing that this scenario is not
possible (or in fact not likely, given the OHS visibility) I'll shut up
on it. But frankly, I think any such lawyer will admit that this
scenario is plausible and that is why indemnification clauses for
volunteers are "unsafe" for them even if they are the most honest and
conscientious people in the world.     (010)

Another way to look at is is this -- if BI had a salaried employee doing
software development, would they have to indemnify BI? Does BI have such
a clause in its current employment contracts? I've seen a few employee
contracts (as opposed to contractor ones) and I've never seen an
employee contract with an indemnification clause. Even if employers have
started adding them, an employee would be nuts to sign it. The risk of
for distributing a jointly produced product is expected to born by the
employer (or publisher). Essentially, volunteers are employees who work
for zero pay (and that is one of the often overlooked problems with
onsite volunteers for non-profits -- all employer provisions and
liabilities for harassment, OSHA, etc. exist for volunteers same as with
employees). Why should paid employees get money and then not have to
indemnify BI (assuming that would be the case), if volunteers get no
money and have to indemnify? The social logic doesn't add up -- unless
essentially volunteers are being seen as unpaid contractors as opposed
to unpaid employees. And as someone who has done contracting and had
legal advice on such clauses, I can say my lawyer would advise me not to
sign it without at least being able to control the legal defense (and
only then if the money made it worth it).     (011)

The bottom line: this issue has cost a lot of bandwidth and has reduced
my involvement with UnrevII & OHS. Let's just get it out of the way once
and for all. If I didn't care a lot about what Doug and others are
trying to do with the OHS, I wouldn't even be taking the time to bring
this up. (I'd be like the various lurkers who have written me in the
past and said they have chosen not to get involved with the OHS
project.) Please take a look at other successful open source or free
software projects like Apache or Mozilla or Python and see if they have
such clauses (I'd be very surprised if they do).    (012)

If my position is substantiated by BI's own lawyers, then the issue is
where to go from here? Unfortunately the matter is complicated by the
use of "extended and subsequent" in the clause and the involvement of
both Stanford and BI -- otherwise it would be easy to just declare that
the UnrevII Colloquium under "permission to use 1.0" is over and
something new called UnRevII 2.0 has begun under "permission to use
2.0". Everything goes through multiple revisions -- one makes a best
first try, accomplished things, learns things, and then makes a next
best try. As it is, I think it might take serious and likely drawn out
negotiations between BI and Stanford to resolve this issue given
"extended and subsequent" because to an extent Stanford and BI may have
different interest here (likely, BI to make an OHS using volunteers or
grants vs. Stanford to get as much ownership of patents and copyrights
as possible for resale profit or use in courses). If Stanford lets go
gracefully, I will be impressed.    (013)

Just to step back from this for a moment -- the deeper issue of UnrevII
is enabling collaboration. That is a big part of finishing the
Unfinished Revolution. Resolving this issue of "permission to use" and
indemnification and licensing, while unfortunately taking up bandwidth,
is I think still within the realm of UnRevII. If the social aspects of
working together (such as fairness, equity, accountability, avoiding
tyranny of the majority, respecting moral rights, etc.) can't be
resolved, the technical aspects don't matter. If they can be resolved
here, they provide a model for others to use.    (014)

-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    (015)