Re: [gentoo-project] Merging Trustees and Council / Developers and Foundation

[William L. Thomson Jr.]

On Friday, January 6, 2017 1:10:48 PM EST Andreas K. Huettel wrote:
> Am Donnerstag, 5. Januar 2017, 15:36:45 CET schrieb Matthew Thode:
> > Merging Trustees and Council / Developers and Foundation
>
> [...]
>
> > This split is suboptimal for Gentoo (all of it).
>
> I agree with this statement, though probably for slightly different reasons.
>
> In my opinion the main problem with the current situation is that it invites
> to "game the system". People unhappy with a council decision run to the
> foundation trustees. When foundation and council cooperate well, that's no
> problem, but as soon as personalities clash and responsibilities are ill
> defined, anyone can trigger a "Gentoo constitutional crisis" at will.

One difference is Trustees handle the legal liability. It is possible council 
could make a decision that would make Gentoo liable. In that event, the 
Trustees doing their job of protecting Gentoo. Would be acting in Gentoo's 
best interest to avoid such potential liability.

There are lots of frivolous law suits in the US. Many times because 
individuals suing organizations are not seen as equal. Organizations can lose 
more than individuals. As in someone suing Gentoo has a greater chance of 
winning, then say Gentoo suing that same person.

Even if the person has no case, a law suit can bog things down and it is 
something Gentoo or any organization would want to avoid at all costs.

> That sounds like a good plan to me, in principle, however we need to figure
> out some details first. I think we really need to merge the voting pools, so
> there is one well-defined electorate for the board. Also, I think that
> voting for the board should be restricted to Gentoo developers (with or
> without main tree access), since that provides a good "proof of productive
> involvment".

Foundation membership was not directly tied to Developer status. Say you 
retired, should all your previous efforts become negated? There are provisions 
in the by laws to extend foundation membership as long as interest remains.

https://wiki.gentoo.org/wiki/
Foundation:Bylaws#Section_4.4._Continuation_of_Membership

I seem to recall provisions that if someone failed to vote a few times they 
would lose membership. But I am not seeing where you can lose membership short 
of a request. Seems foundation membership is permanent unless requested 
removal.

>
> The other side is that we can't predict worldwide legal impact, and that it
> may well be disadvantageous for someone in another country to officially be
> member of a US legal body.

US tends to be the most free and open. Most FOSS projects with a structure are 
in the US. The SPI is in the US.

Not saying there is interest, but if Gentoo was say moved to another country. 
That may further fall under export restrictions even for an open entity. 
Assets would have to be transferred etc.

> * Board members have a different legal status.
> It may become impossible for some of our developers to be elected to the
> Gentoo "board", since the legal position may lead to conflicts of interest
> with real-life work.

This is very valid, and there might be further restrictions as to who can 
serve on the board. Depending on what country they reside.

> * We need to figure out what to do with non-dev foundation members.

Likely need different levels of membership that include the community, Gentoo 
staff, and also corporations. If companies can play a role in Gentoo, they may 
provide additional funds, etc.
 
> * Anything else?
>
>
> So how can we solve this?
>
> [Disclaimer: I haven't done any detailed research yet, so some of the ideas
> presented below may well be premature.]
>
> * Transfer administration of Gentoo assets and finanicals to an organization
> as, e.g., SPI ( http://www.spi-inc.org/ ). See e.g. http://www.spi-inc.org/
> projects/ for references.

That does not change the US legal issues. The SPI is not a legal body, they 
use the SLFC. Also in the US, as is the EFF.

> * Dissolve the Gentoo Foundation.

Good luck, though what many do not seem to realize is the Gentoo Foundation 
does not really legally exist now.

> This means:
>
> * Anyone now running for trustees can run for council and be involved in all
> aspects of Gentoo oversight.

If no foundation, no trustees. No copyright and other legal protection as no 
entity owns the rights to such. Meaning anyone can have their own Gentoo and 
who could say who is allowed to use that name, logo, etc. Who owns the IP etc.

> * There is only one controlling body (I guess whether we name it "board" or
> "council" doesn't matter).

Most companies do not have 1 entity. They have a board, officers, etc.

> * The part of Gentoo where mistakes are fatal (IRS filings, corporate
> status, trademarks, financial statements) is handled by professionals (or
> not relevant anymore).

I do not think you fully understand what you are speaking about. There is no 
avoiding some of the legalities. Any project faces the same, why many go to 
the SPI to not deal with it, but comply with requirements.

> [Robin is doing a great job of handling our finances at the moment, and it's
> good that the trustees are very active now. As in all volunteer
> organizations, we can't take that continuously for granted though.]

Really then why am I treated how I am? Robin is doing minor things compared to 
what I have done. Robin also not being a US citizen will have issues and be a 
bit harder to do something things that are easier done from within.

This fell to him, because Gentoo drove others with such abilities away. No one 
else stepped up so Robin is now. But the mess is pretty serious and goes back 
to 2004.

> * The Gentoo "council" or "board" does not involve any legal status which
> can make it difficult for anyone to run.

The board does have legal status. The council and any other body has no legal 
status.

> * The electorate lists for the "council" or "board" are handled by
> ourselves, and do not require membership of any legal body.

Again you have to have something legal to protect the name and other IP. There 
is no getting around that period.

There was a reason Daniel Robbins created the foundation when he was leaving 
Gentoo. He changed the structure, transferred assets, and was the only one 
doing things the right way legally.

If nothing else, Gentoo could really use Daniel as a steward for the 
Foundation. Gentoo's registered agent is Daniels attorney. Daniel lives in New 
Mexico. A few things that make him ideal to be involved. Any reasoning to keep 
him out makes no sense from that perspective. Unless there is another dev who 
could be a trustee residing in New Mexico. Maybe an officer.

-- 
William L. Thomson Jr.