Foundation Project
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Introduction
At the Berlin Conference in May 2007, the group had a discussion about how to safeguard the Adempiere project from a legal perspective.
There had been a lengthy debate in the community regarding the necessity of protection and what form it might take. There was significant recognition that something must be done but some different views on what the solution might be.
Community Concerns
Some of the concerns were:
- the community might lose some rights or be exposed to some restrictions as a result of the foundation being created
- there was some concern about the motives of those parties who were advocates of the foundation
- uncertainty as to function of the foundation gave rise to potential conflicts between integrators, developers, end users and other groups within the community.
This is partially documented in the following wiki link European_ADempiere_Conference_Day2#Adempiere_Foundation
In order to find some resolution, as task force was nominated and asked to provide a solution to the community based on the principles established at the conference workshop within a fixed time frame.
Foundation Principles
The principles might be expressed as follows:
- The Foundations actions and activities should be transparent to the community
- Conflicts of interest should be avoided by parties to the foundation or otherwise disclosed to the community
- The foundation parties should be accountable to the community
- The foundation should exist for the benefit of the community and to safeguard the intellectual property of the community on behalf of the community
- The foundation should be non-discriminatory (race, religion, country, gender, etc)
- The parties to the foundation should prevent the foundation from directly competing with the business of external providers
- If the foundation parties are remunerated, then this should be transparent and fixed at a reasonable rate
- The foundation was to act as the caretaker of community's property - specifically the code base and documentation
- The parties to the foundation should be represented by parties from the communities factions such as (1) End Users, (2) Developers and (3) Implementors
- The foundation should be non-exclusive
- The foundation should be as simple to understand and administer and minimalist in it's remit to perform the role for which it is constituted
- The foundation should be everlasting
- The foundation should not be owned privately, but should exist for the community
Possible Solutions
The team looked at these principals and are currently investigating the following possible solutions:
Adoption of the Free Software Foundations Fiduciary License Agreement.
See more details regarding the the FLA Proposal
This proposal involves:
- adopting the FLA for any new contributions
- requesting contributors to sign the FLA allowing the FSF to managed the copyright issues
- where contributor agreements are not signed - over time re-write any necessary code
In order for this to be adopted, we will need to ensure that we satisfy the criteria under FLA Guidelines
Benefits include the complete independence and clarity of mission of the Free SOftware Foundation and the reduced administration and complexity for the community
Establishment of a minimalistic 'Foundation'
This proposal involves:
- establishing rules of the foundation
- assessing the costs and benefits of relevant geography
- appointing legal staff to draw up legal documents relevant to the geography and in line with the principals
- some guidance might be available by looking at other foundations such as Eclipse, Apache etc ....
- appointing 'trustees' to the foundation
- agreeing a budget and obtaining some funding for establishment and ongoing management & administration
Benefits including increased control over the community's intellectual property by people who understand the project
When deciding on a minimalistic foundation - we will need to decide on a domicile. The following domiciles have been suggested including a legal form. A comparison is provided here:
German eingetragender Verein
From: Kai Schaeffer <ks@schaeffer-ag.de>
It is somehow owned by the members. They can change the bylaws or just close it. That might by an issue. But what does it mean that the members could kill it? If you construct it right members mean the community. So the community could kill its own entity? I brought the "Verein" into the discussion because very simple found. You don't need a lawyer and you don't need money at all. And it could fit to our needs. It's perhaps not the best we could get but it's definitely not the worst.
A summary of legal frameworks to support foundations can be found here:
[Legal Frameworks of Various European Countries]
In order to analyse the "do it ourself option" - I think we need to decide on what questions are important and then seek out the answers to those questions for all of the options.
Questions
Here is a summary of questions people have raised about the legal form (please add questions and answers):
- What country is it domiciled in?
- What is that country's laws regarding software patents?
- What is that country's legal attitude towards litigation?
- What does it cost to establish and maintain?
- Who manages the foundation?
- What are the rules?
- Who owns the foundation ?
- What is the process for administering the foundation?
- Can people holding public offices in the foundation get remunerated?
- What does the foundation own? Copyright - Code / Documentation, Patents, Trademark
