[Discussion] Consortium Bylaws Draft Available!

[Tomas L. Byrnes]

Glad to contribute. Since I'm in the middle of working on licensing at
the moment, I have some direct experience of the various terms. More
below.

>-----Original Message-----
>From: Matt Jonkman [mailto:jonkman at jonkmans.com]
>Sent: Wednesday, May 27, 2009 12:49 PM
>To: Tomas L. Byrnes
>Cc: discussion at openinfosecfoundation.org
>Subject: Re: [Discussion] Consortium Bylaws Draft Available!
>
>Hey Tom, good comments, thanks for taking the time. apologize for the
>reply delay. I sent your email and some of the other questions over to
>our lawyers to make sure we were going the right direction. I've
>plagiarized some of their responses to help explain, as I couldn't do
it
>more accurately than they. We are going to make some changes to the
>bylaws and get them back out for comment.
>
>More inline:
>
>Tomas L. Byrnes wrote:
>> Personally, I would be unwilling, and in general, unable, due to
other
>> licensing requirements and the needs of private investors, to
>surrender
>> copyright and/or patent rights on any intellectual property
>> contribution.
>>
>> Most of us have other businesses that will be using the IP we would
>like
>> to contribute to the efforts of OISF, and need to have those
>businesses
>> able to use what we create independent of OISF.
>>
>> What makes more sense is that the committers give OISF a worldwide,
>> unrestricted, sublicensable and assignable license to their IP,
>provided
>> it remains within the construct of OISF.
>
>Our lawyers recommended we do this but we got lost in the discussion
and
>didn't express that clearly. (the idea that the contributor would
retain
>copyright as well) We're getting that portion re-worded and will get
>that out to the community asap.
>
>

[TLB:] 
[TLB:] Great.


>>
>> An example of what the current regime seems to allow is that some
>patent
>> troll could get a hold of OISF, stop doing any real work, and just
use
>> it as a licensing house.
>
>A quote from our lawyers:
>
><quote>
>
>"OISF is a 501(c)(3) nonprofit. It will be obligated to promote its
>nonprofit purpose. It's actually a fairly safe proposition to entrust a
>free software nonprofit with the copyrights - it is restricted by law
to
>only undertake activities that promote and support free software. Any
>elected directors will have a duty of loyalty, duty of care and a
>fiduciary obligation to the organization and its nonprofit mission. The
>worst that could happen is probably that interest in the organization
>would dwindle and become inactive - the software would remain freely
>licensed, though, and held in the public interest (there are also
>rules about how nonprofits can dispose of their assets so they couldn't
>just let a proprietary software company take control of them)."
>
></quote>

[TLB:] 
>
[TLB:] I have a lot of experience with the non-profit industry, having
run Grantsmart.org for several years (It's back up, being run by
Nozasearch.com, and looks like they're still using the code we wrote ),
and I can tell you that there are plenty of cases where the 501(c)(3)
structure is simply a way for people to do what they want free from
taxes, and the oversight of an outside BOD. 501(c)(3) organizations,
especially operating foundations, are free to do all the same things
that any normal business can (as long as they are usual and customary
for their purpose). The only real difference is that they can't be
bought or sold in a traditional sense. However, there can easily be a
contractual quid pro quo for someone who steps out of an operating role
getting a nice fat long term contract as a board member or "consultant",
in exchange for ceding operating control to someone else. You wouldn't
believe how much $$ the board members of various foundations get paid,
especially for things like hospitals. You can find all the tax returns
of the foundations @ www.grantsmart.org and nozasearch.com to get a feel
for what I mean.

I'm not saying that is what OISF is now, or even the intent, but there
are plenty of ways for the unscrupulous to use the structure to meet the
letter of the law, while perverting its purpose.

>Well put I think, and reassures me about the safety of entrusting the
>foundation. Does that make sense and/or reduce your concerns?
>
>

[TLB:] 
[TLB:] As with anything else, it's the quality of the BOD and the
dedication of the BOD and the staff to the cause that will make the real
difference. However, cash crunches can lead to problems in a non-profit
just as quickly as they do in a for-profit, and present opportunities
for an "Angel" who later turns out to be not so angelic.

>>
>> One other thing we don't want to happen is for Some Big Company to
>come
>> along and take over OISF, take our IP, close it off, and profit for
>very
>> little cash from all our efforts.
>
><lawyer quote>
>
>Since nonprofits have no shareholders, they cannot be bought by big
>companies. 501(c)(3)s cannot be used to benefit private individuals or
>businesses.
>
></lawyer quote>
>
[TLB:] 
[TLB:] See above: the board can be "taken over" by a large Donor as a
quid pro quo for the donation.

>And I believe the rules about how a non-profit can dispose of it's
>assets (they have to go to charitable use, can't be sold for profit as
I
>understand) cover us there as well.
>
[TLB:] Depends on the foundation. An operating foundation can sell its
assets to raise cash for its operations. That's exactly what happened to
Grantsmart, as JC Downing wanted to focus on health care for vineyard
workers.

>Comments?
>
>We're working up a new draft to cover the first point on copyright
>assignment and will get that out asap!
>
[TLB:] Great. If you want some help with experience in the matter, I'd
be happy to be involved.

>Matt
>
>
>--
>--------------------------------------------
>Matthew Jonkman
>Emerging Threats
>Phone 765-429-0398
>Fax 312-264-0205
>http://www.emergingthreats.net
>--------------------------------------------
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