[unrev-II] A Cusp: License issues for released code & Legal Notice

From: Paul Fernhout (pdfernhout@kurtz-fernhout.com)
Date: Mon May 08 2000 - 06:46:12 PDT

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    All -

    This is the "Permission to use" license for the colloquium and extended

    I put it in this email in its entirety because it is important:

    Bootstrap Institute & Stanford Center for Professional Development

    Permission To Use

    By participating voluntarily, and on my own accord in the "Engelbart
    Colloquium at Stanford: An In-depth Look at the Unfinished revolution"
    ("Colloquium") given by the Bootstrap Institute and Stanford University
    from January to March, 2000, I hereby grant the Bootstrap Institute
    ("BI") and/or Stanford University ("Stanford") permission to use,
    encode, digitize, copy, edit, excerpt, transmit and display the
    videotape and digital video stream of my participation, as well as to
    use my name, voice, likeness, biographic information, and any ancillary
    material in connection with such videotape and digital video streams,
    and my contributions in dialog, interactions, verbally, written or
    otherwise, in person, or through electronic media as part of the direct
    or extended activities for participants of the Colloquium.

    I/we understand that this colloquium will be offered on campus at
    Stanford, as well as on webcast over the Internet to Bootstrap Alliance
    members and the public, and also broadcast over one or more television
    channels to member organizations of Stanford Center for Professional
    Development ("SCPD") and may be videotaped and/or digitally captured for
    later webcast, broadcast and/or transmission or delivery to member
    companies outside the broadcast range of SCPD, for course licensing, and
    for campus libraries. This grant includes without limitation. perpetual
    rights for both internal use and for licensing, sale or other transfer
    of the videotapes or digital files to third parties, and includes
    transmission and display over the Internet. This permission is
    irrevocable and royalty free, and I understand that the BI and Stanford
    will act in reliance on this permission.

    Further, I shall be responsible to ensure that I have the proper
    authorization to use any proprietory, patented or copyrighted material
    that are presented as part of any contribution by me during my
    partcipation, and 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.


    I've gotten to the point where I might want to release some code related
    to knowledge management under an open source license, perhaps
    incorporating technology developed independently over the course of many

    Note the license is worded in parts to make it seem on first reading
    like distribution only for a professional development course, but in
    practice "perpetual rights for both internal use and for licensing, sale
    or other transfer of the videotapes or digital files to third parties"
    could be interpreted to mean any sort of licensing for any purpose.

    "Indemnification" as I understand it means, you pay the other person's
    bill if anything goes wrong. The "indemnification" clause here could be
    interpreted to mean that if anyone releases code here, that:
    A) the author will pay all legal costs of the Bootstrap Institute
    B) the author will pay all legal costs of Stanford
    C) Bootstrap may continue to use the code with the author stuck with
    third party licensing fees
    D) Stanford may continue to use the code with the author stuck with
    third party licensing fees

    If this is true, and of course any code may be stuck with a patent law
    suit, considering the US
    PTO patents just about anything, then this makes contributing code to
    this effort under these terms very risky. Blanket indemnification
    clauses are foolish to agree to. If one exists in an open source
    license, it is usually caveated, like "infringing code will not be
    used". While there is no indemnification for the GPL, it does say that
    code that infringes can't be used. Also, the author has no control over
    the legal defense, so if Stanford and Bootstrap gets expensive and yet
    incompetent attorneys, the contributing author still gets stuck with the

    Up to this point, code & comments I have submitted (recently or through
    setting up Zope) has been nothing special, and I saw not great risk in
    contributing it to this effort. But you can see why I hesitate to
    contribute any significant code to this Colloquium/Bootstrap/Stanford at
    this point.

    As things stand now:
    A) this license is not open source (because Stanford and the Bootstrap
    are not obligated by it to publish materials, or to allow others to
    redistribute them). And
    B) the license is one-sided, because it creates a potentially uncapped
    legal liability (indemnification) for the contributing author.

    For example, as I read it, I can not redistribute the contents of emails
    on the list (say in a repository), although Stanford or the Bootstrap
    Institute can. I cannot redistribute any code others contribute (unless
    they otherwise grant me a specific license) although Stanford or
    Bootstrap can.

    For an example of the implications, say I naively contribute a piece of
    independently developed code that infringes on a software patent for
    compression. Stanford can now license that code to anyone they want, for
    any fee, keeping the revenue, and I as an individual am stuck with the
    burden of the lawsuits and paying any settlement, including a settlement
    for Stanford's continued licensing of the code. Of course, if the owner
    of the patent does not want to license it to allow Stanford to continue
    sublicensing it, then I'm not sure what the outcome would be. Of course
    on a practical basis, Stanford has deeper pockets than I, so they would
    be sued anyway, and after I was forced into bankruptcy, Stanford would
    still have to pay the rest of their legal fees and licensing fees (and
    might then discontinue licensing the code to reach their own

    Note that this outcome might be the same if you did not contribute code
    -- but just a business model that was patented. In this case, just an
    email might give Stanford grounds to be able to license the business
    model and have you liable for all the licensing fees. Also, you may
    contribute something that is non-infringing by itself, but when combined
    with something else by another author that is non infringing might
    infringe. Both authors might then be liable together for Stanford's
    legal bills.

    Also note that copyright law allows for contributory infringement. So if
    something is released using code you contributed that is used in such a
    way as to say copy MP3 files, you as a contributor might then have to
    pay Stanford legal bills to the music industry.

    Any comments? Without resolution on this, it maybe prudent for me to
    "officially" withdraw from participation in this colloquium just to
    publish open source code in a less risky way.

    I am not a lawyer, so any lawyers out there, feel free to correct my
    understanding of this.

    So, it would be prudent for me to say at this point that:
    A) I will not release any code from this point on that I consider to be
    a contribution to an extended activity related to the Colloquium until
    this licensing issue is resolved, and
    B) any code I do release on my own web site before then should therefore
    not be considered as a contribution to any extended activities of this
    Colloquium, and
    C) if I do release code as "open source" code on my own, then of course
    it might be used by the Colloquium under the terms of its own license,
    as it might be used by anyone else under the same terms.

    It is not my intent to be alarmist here, or to say that I do not want to
    contribute to an open souce OHS/DKR. But I do think these licensing
    issues needs to be resolved before we can move forward with serious open
    source code development.

    -Paul Fernhout
    Kurtz-Fernhout Software
    Developers of custom software and educational simulations
    Creators of the Garden with Insight(TM) garden simulator

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