Re: Xaraya2x actions to come

I'll try and answer all of your questions the best I can. At the end I  
will try to formulate at least a rough outline of what I think the  
major steps for a resolution could be.

On 25 feb 2009, at 19:15, [email protected] wrote:

> We have a zombie domestic foundation in New York whose  
> representative to
> the authorities is a lawyer who has no ties with the Xaraya project.

partly correct, i can also represent the foundation to the authorities.

> The initial members of the foundation have long left the project with
> the exception of 1 or 2, leaving it unable to form quorum to take any
> major decisions as called for by its statutes.

incorrect, decisions can be made on business affairs by a sole  
director, including appointing new directors. Forming a quorum of 1/3  
(i think that works out to contacting 10 or 12 people in practice) has  
never been actually tried, but i have maintained in contact with  
enough members that i am convinced, once we know where to go, a one  
time gathering (in person or by proxy) decision fest can be made to  
work. The key is not *that* we can make a decision but *what* decision  
to make.

> The sole representative in the Xaraya project is yourself as the  
> head of
> the Board of Directors, whose other members have left.

correct

> There have been no Board meetings or minutes published for years. The
> foundation's activities are not of public record.

correct, not sure about what that last part would entail exactly if  
there were records to be made public. If people need information, I'd  
be more than happy to provide what I can.

> The foundation does not have the resources to carry out its mission  
> with
> respect to copyright, which was to collectively defend it for the
> project in case of breach or litigation.

incorrect, the assignment is in place, which is all there is needed.  
The resources to defend copyright are just that. If you mean that we  
do not have to means to put those resources to effect, that is correct.
(that is, if megacorp challenges us, we'd probably be forced to give  
up before going to court, challenging megacord is even harder)

In many cases, this is not needed though. The whole point of copyright  
notices is to prevent going to court and to clarify the copyright in  
situ. Let's at least do that bit the best we can.


> So in spite of the above you are arguing because of this link:
> http://tinyurl.com/cgu57m
>
> that anyone committing to the Xaraya core repository is obliged to  
> share
> copyright with the foundation?

No, I was answering your question if the foundation was legally valid.

> Presumably you are insisting that all new committers to the core
> repository share their copyright with the foundation?

No, I am insisting that copyright is not removed without contacting  
the original copyright holders.

If people do not want to share copyright, they have the opportunity to  
signal so in the code they author. Then, the PMC can decide if they  
would like to include such a contribution or not, for the project.

Removing existing copyright without contacting the original owners is  
another matter.

> Why has this situation been left in such an unsatisfactory state for  
> years?

We have been unable to resolve the situation to anyone's satisfaction  
I suppose. It is not an easy thing to do in my opinion and should be  
executed with a considerable amount of accuracy. (See also at the end)

Maintaining the status quo wrt legality is the best I have been able  
to do on my own. We should be careful to all stay on the same side, as  
it concerns our copyright, yours and mine and others. We have the  
exact same interests to arrange for this properly.


> Why is the fiction being maintained that there is some benefit to  
> anyone
> here? If there is, whose benefit is it?

I do not think it is fiction; in fact, by discussing this, I am  
actually doing my job right now as DDF director to investigate the  
reasons for a person removing legally valid copyright. This is,  
perhaps in a very small way, beneficial to everyone who has signed the  
JCA. If that benefit is high enough, is another matter.

> How can we attract new developers with a situation such as this? Isn't
> this damaging to the project?

Perhaps, it's certainly a part of being 'not attractive'. It's at  
least ambiguous where we stand. Resolving the situation if the  
majority of people are unhappy with it is the only way to deal with  
it. Removing the copyright is not resolving the situation.

> Why is the foundation not being wound down? Is it because you are  
> not in
> a position to do so legally? Is it a question of resources?

Mostly a question of resources. I came close to doing so at the end of  
last year, but it was very attractive to wait till a new PMC was in  
place, expecting/hoping for a resolution better than winding down.
(I think there is a previous post from me on the matter) Even if the  
foundation would be dissolved, the question will remain what to do  
with the copyright notices. I bet the option of leaving them in there  
would be one of the alternatives in that case. (backed by historical  
records obviously)

> Who can take decisions for the foundation? Is it you alone? What  
> happens
> when you leave or in case of incapacity?

Yes, a sole director can take (business) decisions for the foundation.  
I actually have a document which says who can take decisions  on what  
matters in case of me being incapacitated (which would include DDF  
decisions). This is a general letter though, a more specifically  
tailored delegation of decisions would be better. This is typically a  
thing which you arrange for when all other priorities have been  
catered for. It runs the risk of not being taken care of at all.

> What better solution can this be that has not been identified over the
> years?

I do not understand this question.

> Is there a roadmap somewhere for resolving this situation?

No, but one of the key ingredients of that would be some people  
volunteering for a director position temporarily. I can not solve this  
situation alone, nor do I want to. In my opinion the peer review on  
this matter is very important.


> I realise there has been talk about adherence to the FSF and such, but
> isn't it so that transfer of the foundation's copyright would  
> require a
> decision that there is no quorum to make?

Maybe. A quorum of 1/3 is needed for a member based decision.  
Transferring copyright, under legally similar conditions as are in  
place now, i.e. sharing to another entity than the DDF, may fall under  
'business decisions'. I would have to dive into that to see if that  
holds. I still would not want to decide on that alone, though. I would  
opt for trying to get the quorum anyway.

> And frankly, whatever decision is made is solely legally in the  
> hands of
> the foundation's owners/members/representatives. The committers to the
> repository who are not foundation members have no say, as I recall.

That's, as such, true. But any member can introduce another member, so  
that can be  resolved as part of a transition plan. (formal  
installation of members is normally done on meetings, but there's a  
way around that if that would be a hurdle)

> As someone who as you know spent (along with yourself) a lot of time  
> to
> set up the copyright sharing scheme, I now find that, years later I  
> and
> the other committers still have no say in bringing this failed
> initiative to some sort of a resolution, not because of anyone's ill
> will I would argue, but because legally we have no cause.

I do not view at it like that. I think it is exactly because there has  
not been a group of 3 or 5, independent and objective enough people to  
make inventory and formulate a game plan. If this situation has  
changed, very good, let's work on it.

> Instead, we have a situation which effectively precludes anyone in  
> good
> conscience from recommending newcomers to participate in the  
> project, in
> light of this legacy burden.

Again, I do not view at it like that. I also find it hard to believe  
that the DDF situation is the main cause for new committers not joining.

Hoping to turn this into a constructive opportunity to actually  
resolve, or rather improve, the situation, what about the following  
rough proposal:

1. formulate a list of 'pre-transition' items to get into place like:
    a) can we form an odd numbered group of directors doing the work?
    b) create a list of 'member-quorum' vs. 'business' decisions
    c) execute the business decisions (directors can do this autonomous)
    d) get the quorum together of at least 1/3 to work on the member- 
quorum list of decisions
       (either after or before installing new members, preferably  
after, if possible)
2. formulate a proposal for the actual transition
3. execute the transition which may include:
    - getting consent by stake-holders, both formal and informal
    - getting additional copyright signatures of authors, depending on  
the proposal
4. adapt the copyright notices for the relevant works, putting proper  
licenses in place.
5. formulate a list of 'post-transition' activities like:
    - waiving director obligations, or transferring them
    - dissolving/transferring foundation (if transition does not  
include leaving it in place)

The above is about the shortest list i can think of which makes a  
reasonable effort to better the situation, preserving the rights of  
existing contributors and taking into account wishes that have been  
voiced over time that I could dig up within an hour or so.

I do not necessarily need to be involved in the above, but I'd like to  
leave in a responsible way. It's the least I need to do.


marcel

-- 
Marcel van der Boom  -- http://hsdev.com/mvdb.vcf
HS-Development BV    -- http://www.hsdev.com
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