OHS Lists & "permission to use" (was re: On working...)

From: Paul Fernhout (pdfernhout@kurtz-fernhout.com)
Date: Tue Aug 29 2000 - 08:53:44 PDT

Eugene Eric Kim wrote:
> I'd propose moving off of unrev-ii
> altogether, and using a different list to accomplish your
> suggestions. unrev-ii list was created for the Colloquium, not
> for OHS development, and it inherits some problems as a result
> (i.e. different list charter, license issue Paul has repeatedly
> raised, etc.).

I think using the OHS list for discussing specific development issues is

However, I personally feel discussions or related software development
even on any OHS lists might potentially qualify at this point as an
"extended or
subsequent related activity" as mentioned in the license for colloquium
participants and detailed here:

Quoting from the "Permission To Use" statement:
"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. "

Thus "permission to use" might cover submissions from most everyone but
possibly the latest of newcomers (who it may or may not cover). Thus
contributions done through OHS lists might still fall under one-sided
"permission to use" and related liability issues. It appeared to me that
"permission to use" was specifically worded to cover such future (i.e.
"subsequent") activities including later software development. I am not
a lawyer, so this is not legal advice -- just my personal opinion on
which I am currently basing my choice of level of involvement with
Bootstrap and (unfortunately in this case?) Stanford.

This is despite the new choice of license for the end product. It is my
assumption contributions would fall under the broad "permission to use",
and that would flow through to the Bootstrap Institute or Stanford to
sublicense under the chosen license (or others for the contributions of
colloquium participants).

I'd be happy to hear a legally binding statement by lawyers of both
Stanford and Bootstrap otherwise -- such as both organizations giving a
more specific scope to "permission to use" or saying it no longer
applied, or had been revised. And personally speaking, I think it would
be in the best interest of Bootstrap related open source software
development to obtain and post such an official statement from the legal
staff of both corporations involved. I understand why Stanford and
Bootstrap wanted to put such a one-sided clause in place -- to remove
ambiguity and reduce their own liability -- however somewhere along the
line I feel this goes too far -- so far as to possibly risk killing the
open source goose that lays the golden eggs.
However, I can state clearly that short of such an official legal
statement by authorities from both corporations (Stanford and Bootstrap)
effectively making "Permission to Use" something I can live with as a
software developer, regardless of the mailing list address, I will not
contribute any code to the OHS effort beyond the small demo I already
contributed (even that submission represents bad legal judgment on my
part -- an if I might in my defense it should be construed more as an
example than a contribution to any code base). It is sad to have to say
that, given all the good intentions here.

For example, "permission to use" is why I didn't announce my open source
release of the Pointrel Data Repository System for Python and Squeak on
Sourceforge to the unrevii list (although since I put those versions
under the X/MIT license people can currently use them in most any ways).
And it is also an important reason why I don't significantly discuss it
on Bootstrap related lists (despite the potential relevance and my
respect for the opinions of people on the OHS related lists).

This legal issue can not be addressed either by statements from
participants or even statements of intent relayed or made directly from
Doug. The legal liability issue and other issues hinge on specific
written documents promulgated from "official without a doubt" sources as
was the original "permission to use" statement. Frankly, I'm sure Doug
if he sees this issue as significant will have no trouble ensuring an
"official" statement is made on behalf of Bootstrap. It is the Stanford
statement I feel will be difficult and time consuming to obtain.

It is also not clear to me if such a broad "permission to use" would
stand up in court if applied much beyond rebroadcasting likenesses on
video or the email archives directly related to the colloquium. For
comparison, non-compete agreements are usually only upheld if
specifically limited in time and/or geographical scope and/or activity.
But court battles over IP aren't something usually to look forward to.

I personally find the "permission to use" license issue very saddening
and it effectively limits my participation and quite possible that of
others. I also find it symptomatic of deeper issues. Many such issues
are faced by all such projects as the participants struggle with issues
of ownership, liability, responsibility, charity, support, commitment,
volunteerism, community building, purpose, private gain, and so on.

Naturally every project has its own unique strengths and weaknesses. On
the one hand, I found BCL's relayed comment (Fri, 25 Aug 2000) "Doug
said that he had not been planning on any actual coding development
happen before some financing for the project had been secured" (assuming
it is accurate) to be disturbing for numerous reasons -- although it may
also explain some things, as if that is the expectation, then
"permission to use" would probably be a non-issue for employees whose
liability would be absorbed by their employer. On the other hand, I've
been very impressed with the quality of the discussion and wealth of
related links on the unrevii list, and the amount of effort many poeople
have put into keeping things going -- and I've learned a lot from
participating on it.

Frankly, I'd find the whole situation somewhat comical if it wasn't so
serious: "Colloquium starts out to make an open library and related
communications software for humanity and their very first decision
prevents that from happening".

However, the "permission to use" situation has persisted for so long I
am mostly focusing on other things at the moment so it doesn't really
trouble me much in practice (except as a temporary disappointment until
it is fixed). It has also sapped much energy that could have gone into
other more productive directions. The only reason I harp on it is that
"permission to use" is in my opinion a "show stopper" until it is fixed.
If other people do not share that opinion, I am happy to stop bringing
it up. And in any case, there probably isn't any value to me personally
to take the time to raise it again, as I just spent two hours on this
email that could have been more productively (for me) spent otherwise.

-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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