Re: [gentoo-nfp] Gentoo Social Contract and potential liabilities

[Rich Freeman]

On Sat, Oct 24, 2015 at 9:42 AM, Anthony G. Basile
<basile@××××××××××××××.edu> wrote:
>
> I have no idea where you're going with this. If Gentoo is unwilling uphold
> the SC then it should not have made that promise.

I'm not advocating that we shouldn't uphold the SC.  I just disagree
with you about what the SC means.

>  You don't just get out of
> a contract because ${reasons}.

Well, actually legally there are many reasons you can get out of a contract.

However, I'm not advocating that we break any contracts, so that isn't
really an issue.  If I were suggesting that we change the Social
Contract perhaps this would be more of a concern.

> There were many man-hours of labor put into
> Gentoo under that agreement, and its not unreasonable that some will legally
> demand that Gentoo stand by it.

The labor was contributed under the terms of the GPLv2.  That is
really the only thing that resembles a legally-binding agreement.

I can fork all of Gentoo tomorrow and use it for whatever I want to
use it for, and the originally contributors would have no grounds to
sue me for any of it as long as I distribute the sources with any
binaries I distribute.  How would they have more grounds against
Gentoo itself?

> This make us liable, especially as the leadership, liable.

The fact that somebody will demand that Gentoo do something does not
actually make anybody liable.  I can demand anything I want.  For a
filing fee I can sue you tomorrow because I don't like what you said
in your emails.  That's just the US legal system.  I won't prevail in
a court, but I can still sue you.  That doesn't make you liable.

> It is not unreasonable to request legal council at this
> point so that we are better informed.

By all means do so.  If there is some kind of legal precedent for any
of this I'm all ears.

However, if Gentoo developers choose to ignore the guidance of the
Trustees and Council, I still don't see what you're going to be able
to do about it.  Gentoo has no control over how developers communicate
outside of Gentoo infra.  Freedom of association means that developers
can interact however they wish.  We're not subject to non-disclosure
agreements, so nobody can dictate what communication mediums we use.
You can get rid of the Gentoo organization on Github if you wish, but
nothing prevents developers from starting their own organizations.
Under the trademark policy they can even use "Gentoo" in the name as
long as they adhere to the community use provisions.

Gentoo is already a fairly loose association of relatively independent
projects, so if a few just become Gentoo community projects that
happen to be staffed by developers with commit access I doubt much is
going to change.

IMO, from a legal perspective it would be far more dangerous for the
Foundation to publicly announce that they consider themselves liable
for the use of Github (which can then be used against the Foundation
in a court of law), and then fail to actually prevent the use of
Github (since it isn't practical to do so).  Organizations tend to
avoid trying to police things that they can't police effectively,
because it just means that they won't do it well, and it is often
worse to do something poorly than to just claim that it isn't your
responsibility to do it at all.

I tend to cringe a bit when I see Trustees/Officers post on this list
absolute statements like "the Foundation is liable for xyz" because if
I were a lawyer suing the Foundation it would be the first thing I'd
use against it.  When you want to sue somebody you have to prove that
you have a basis in law and fact for your claim.  If the defendant has
already publicly admitted that they're liable then they've already
made your case on the law for you.  But, I'm only an armchair lawyer,
so take this with a grain of salt.

That said...

IMO we're really barking up the wrong tree with all of this.  Rather
than arguing all day about whether or not we should be using Github,
we should probably address the even bigger elephant in the room, which
is that we're understaffed on infra and thus unable to host our own
FOSS alternative to Github.  Granted, you can argue whether the
alternatives are as good/etc, but if we had something like Gitlab
available to us I suspect there would be a LOT less interest in using
Github instead.  Rather than fighting with those who just want to
contribute code, maybe we should make it easier to actually utilize
FOSS tools to do so.

-- 
Rich