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

[Anthony G. Basile]

On 10/24/15 10:17 AM, Rich Freeman wrote:
> 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.

It may not be up to either of us how that is interpreted is my point. 
The Gentoo Council may be the last word within Gentoo, but not 
externally.  Hence we should get legal council here.  A few hundred 
dollars my shed important light here.  You email a copy of the SC to the 
lawyer, you pose the question and you ask for advice regarding the 
enforceability of "depends"  For all I know, he might say, this is so 
vague that it carries no weight.  Or he might say, there is strong case 
law regarding the meaning of "depend" among organizations.

>
>>   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.

All of which are judge externally to the person forwarding those 
reasons.  Legal council is advise on what reasons fly in the courts.

>
> 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.

Contract are not just limited to software.

>
> 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?

I don't want to play a guessing game.  Are you against getting legal 
advise on this question?

>
>> 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.
>


-- 
Anthony G. Basile, Ph. D.
Chair of Information Technology
D'Youville College
Buffalo, NY 14201
[phone]