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Re: [ba-unrev-talk] Continuation of Doug's Colloquium

Peter P. Yim wrote:
>>To tie up all the loose ends though, what I'd like to see is a
>>statement from both Stanford and BI that the "extended" activities of
>>the colloquium that the "permission to use" applies to are now at a
>>formal end as of such and such a date and future activities will not be
>>considered as under that agreement. ... [snip] ...
> I would suggest that we do it in a way such that only Doug/Bootstrap
> Institute needs to be involved. That is exactly why the original IPR
> arrangement was set up so that the Bootstrap Institute and Stanford
> University have joint and several rights to the colloquium Intellectual
> Property. This way, if Stanford were to give away their courseware or grant
> an open license to them (like what MIT is doing), they would not even have
> to consult with Doug/BI to do so. The same goes with Doug/BI -- whether he
> is using the content for a book, or, again, granting an open license to that
> material, Stanford does not need to be consulted.    (01)

I agree totally as far as what either organization can do as far as 
sublicensing. A statement of GPLing colloquim related materials covered 
by "permission to use" need only be made by the Bootstrap Institute to 
be useful (although see my comment further down on licensing of 
materials not under "permission to use").    (02)

The major issue though has always been that both BI and Stanford are 
indemified in "permission to use". (The lesser issue is the continuing 
one sided nature of a total grant of rights vs. a specific license...)    (03)

That is a problem that I think likely simply cannot be fixed without 
getting Stanford to sign a document. Let me repeat, unless "permission 
to use" is somehow deemed overly broad and so invalid, or unless it is 
somehow seriously read to mean it does not cover efforts from today on 
for software development and other discussions vaguely connected with 
Doug's work as an "extended or subsequent" activity, or it is ruled 
invalid because it is not signed by the participant (possible quite 
likely but might need to be run by a judge), then Stanford needs to 
agree to limit "permission to uses" scope for initial participants.    (04)

Clearly Doug's intent was to use the colloquium to rally a group of 
developers and enthusiasts to make a system. I find it difficult on that 
basis to argue that development in this context by such people would not 
be an extended or subsequent activity. Look at even the title of the 
email thread... "Continuation of Doug's Colloquium"    (05)

Here is the text:
The line reads "shall indemnify and hold BI and Stanford harmless in the 
case of infringement in intellectual property rights. This permission 
and indemnity shall apply to all activities involved as a result of my 
participation in the Colloquium and its extended or subsequent related 
activities."    (06)

Now if you can get a group of respectable lawyers to say something like, 
that clause can be read as only covering "January to March, 2000" 
referenced at the top of "permision to use" there might be a limit to it 
-- but I don't think one could, given the use of the wording "subsequent 
related activities". Thus the need for a signed statement by Stanford. 
And I think that has always been the single biggest problem -- how to 
convince someone with signature authority at a large corporation like 
Stanford that might see a possible chance to make money at little risk 
to let go of that possibility in the interest of the public good. 
Getting someone at BI to sign off isn't the difficult problem (at least, 
I hope it isn't).    (07)

By the way -- and this is an important issue I may have not brought up 
before -- note that as far as copyrights go to the mailing lists, be 
careful with trying to have it both ways. If a list like "ba-unrev-talk" 
is not covered by "permission to use" (and the tarbaby indemnification 
agreement that irks me most), then what is is covered by? By not having 
a clear transition point, the contents of these lists are left from the 
most conservative viewpoint of everyone owning their own copyright, with 
perhaps fair use limited to sort of the same as one might do with usenet 
posts. Putting such a combined work under the GPL and distributing it 
would open BI up to charges of copyright violations, and because BI is a 
for-profit, might even open people there up to criminal penalties (now 
that copyright violation has been criminalized). Something similar 
stopped Slashdot for example from making a book of posts -- since users 
own their posts there.    (08)

Incidentally, as a related issue, people who participate on the list but 
did not participate in the colloquium may not be covered by permission 
to use. Under what principle of law would BI assume it may redistribute 
say such a posting to this mailing list (such as perhaps by Chris Dent)?
I haven't had to sign up for these lists sicne the start (and maybe one 
other time quite a while back) so I'm not sure what someone subscribing 
to the lists now woudl assume they were getting into as far as copyright 
licensing.    (09)

I think this is a deep legal quagmire and needs to be sorted out with 
all "i"'s dotted and "t"'s crossed by a competent legal authority. I 
think I previously offered some money towards such legal costs (can't 
find it in Google right now) and I would still be willing to pay 
something towards that (a few hundred dollars? I forget what I offered 
but I'll stand by it still -- hopefully it wasn't more than $1000 :-).    (010)

For me, in the absence of such a significant legal effort, it is sadly 
easiest to start over with a fresh page unrelated to the colloquium. 
It's too bad because there is valuable momentum and history on this list.    (011)

So to summarize the difficulty as I ponder this more -- either 
permission to use covers everything and you can GPL it (but then 
volunteers are forced to indemnify Stanford) or permission to use does 
not cover everything (and you can't GPL all the lists). And then there 
are newer posters who may not be covered at all...    (012)

> The UnRev-II colloquium was an exposition of Doug's vision and concepts, and
> a platform for related discourse. In my opinion, software development was
> never part of the colloquium agenda. Work on the colloquium transcript,
> conversion of the same into a book, or the onelist/egroups/yahoogroups forum
> would qualify as "extended activities" of the colloquium. On the other hand,
> OHS software design and development shouldn't be, and, to the best of my
> knowledge, do not even fall under the colloquium "permission to use"
> jurisdiction. And, I am saying this, as the person who put together the
> published version of the UnRev-II colloquium "permission to use" statement
> and the Bootstrap Institute representative who negotiated the IPR
> arrangement with Stanford.    (013)

Interesting intent, but the problem is the document wording was just too 
broad... Software development was stated at the outset and to me at 
least seems clearly an "extended" or "subsequent" activity. What were 
the intents of all the other people who helped craft that document (say 
at Stanford)? If you got legal help, see one of the problems with some 
lawyers is they rarely say, "well if you go too far in reaching for 
certain rights, it may not be in your best interest" -- since they often 
assume usually it's a zero-sum game and the other party is going to 
negotiate. The thing about this is it isn't a zero sum game. With a 
fairer, less one-sided agreement, more might be produced for all. And 
faculty, staff, and students at Stanford might get more out of it -- say 
when such software is used to predict and avert a major quake (who knows 
what bootstrapping could do?)    (014)

The term "digital files" seems to me broad enough to cover software.    (015)

With all due respect, and with all due appreciation for the large 
amounts of hard work that went into setting up the colloquium and 
carrying it out, and for the value of the list as a fount of pointers 
and ideas, and with 20/20 hindsight, then obviously such an overly 
broad, one sided, unlimited perpetual agreement, violating the spirit of 
open source volunteerism, may not have reflected your true intent -- but 
nonetheless there it is. And it impeeds progress. It's not a technical 
thing I can easily fix from this side of the continent. Even if I was at 
Stanford, given human nature, this isn't going to get resolved until 
someone at BI has a nice chat with someone at Stanford.    (016)

Consider if from a free or open source programmer's point of view. If 
someone is reaching for rights to do anything they want with a 
contribution is something more like: "We (Stanford and BI) indemnify you 
(the programmer) for any patent lawsuit or copyright claims resulting 
from materials submitted that to the best of your knowledge were 
non-infringing..." That would be fairer. That is why people form 
companies -- to limit liability. Asking volunteers to absorb liability 
is not in my opinion the right approach. That is one reason Apache 
incorporated as a non-profit -- to limit the legal liability of 
volunteers. See:
"Formerly known as the Apache Group, the Foundation has been 
incorporated as a membership-based, not-for-profit corporation in order 
to ensure that the Apache projects continue to exist beyond the 
participation of individual volunteers, to enable contributions of 
intellectual property and funds on a sound basis, and to provide a 
vehicle for limiting legal exposure while participating in open-source 
software projects."    (017)

 > I shall look forward to a renewed level of enthusiasm.    (018)

I have been saddened by limiting my participation to resolving this 
issue. I like the people on this list and Doug's noble goals of using 
bootstrapping to help resolve world problems like ensuring everyone has 
access to food, water, energy, housing, and so on.    (019)

It would be nice to cooperate on something more positive. But the social 
and legal framework of cooperation is something to bootstrap as much as 
software. So this is bootstrapping in action I guess.    (020)

Just wish it didn't feel like starting a research project by locking the 
filing cabinet key inside the top drawer... Perhaps time to call the 
legal janitors and ask them to bring over the drill...    (021)

-Paul Fernhout
http://www.pointrel.org    (022)