Re: [gentoo-project] Merging Trustees and Council / Developers and Foundation - 1.0 reply

[Rich Freeman]

On Wed, Jan 11, 2017 at 7:24 AM, Matthias Maier <tamiko@g.o> wrote:
>
> On Wed, Jan 11, 2017, at 04:59 CST, Matthew Thode <prometheanfire@g.o> wrote:
>
>> I think I'm leaning towards
>> the 'board' being what is currently trustees + hr(comrel) + pr + infra.
>> Under that would go what is currently being done by council.
>
> I am a bit astonished by the sudden proposal to centralize more power
> under the Gentoo Foundation, A US based non-profit. As was laid out by
> ulm and dilfridge, there are a number of severe legal uncertainties for
> non-US citizens participating in such a construct and frankly speaking I
> do not see the need for it. On the contrary.
>
>  - It is my firm believe that it is *vital* for an open source project
>    that essentially consists of volunteers from around the world to be
>    organized as a community and not as a legal entity under some
>    jurisdiction.
>

I do think that having some kind of legal presence in the US is a
necessary evil [1].

However, I think we need to decide as a community whether:
1.  We're mainly a bunch of people working on a linux distro that
happens to need some kind of legal side to it to pay the bills of
running servers and holding IP so that somebody doesn't try to take
them away from us.
or
2.  We're mainly a non-profit Foundation that happens to produce a linux distro.

Don't get me wrong, there are lots of things a legal organization
could do besides the bare minimums, as William has pointed out.
However, we've struggled to just keep the lights on legally and some
argue that we aren't even doing that.

Having an umbrella organization is a way to keep the focus on #1,
while still having most of the benefits of #2.  IMO it would also let
people who are interested in that side of things focus more on
higher-value stuff like organizing conferences and PR and such, and
less on whether our 990s have been filed and balancing the books.
Also, when a legal question does come up instead of endless armchair
lawyering on the lists we could just have the umbrella org refer to
their staff counsel, and most of the time the legal issues would be
already taken care of in boilerplate policies they provide.

Rich

-----------------


1 - On why having some kind of legal presence is a necessary evil:

Necessary:
a. The US tends to enforce IP law extra-territorially.  That means
that if somebody ELSE managed to get control over the
trademarks/copyrights in the US, they could probably use it fairly
effectively against us even if we had no US physical presence.  The
fact that we're not doing a whole lot with the IP doesn't mean that
somebody else couldn't.
b. The flip side of this is that holding IP in the US also allows us
to have a bit of a hammer if somebody is misrepresenting themselves as
us and damaging our reputation.  It is a useful option to have even if
most of us would prefer that we seldom use it.

Evil:
a. Having any kind of legal existence involves overhead, and the sorts
of effort that most Gentoo volunteers are ill-equipped to do, or may
not desire to do.  While an umbrella org involves a lot less overhead
it still will involve some.
b. Having any kind of legal existence, especially in the US, subjects
us to legal controls that limit our freedom of action.  We had
somebody who wanted to be a dev from Iran years ago and this created
all kinds of headaches.  Everybody wanted to find some kind of way to
make them a dev but nobody could really find a way to make it
low-risk.  Whether that was because we were incompetent or because it
simply was impossible the fact is that if we didn't have a legal
existence with assets we wouldn't have even had to deliberate the
matter.  Fortunately embargoes are trending down at the moment, and
crypto is no longer the issue it used to be, but problems like this
will always exist.

-- 
Rich