Re: Who can make binding legal agreements
On Tue, Jun 06, 2006 at 07:43:10PM -0700, Russ Allbery wrote:
> John Goerzen <jgoerzen@complete.org> writes:
>
> > First, I don't believe that SPI has ever granted anyone the ability to
> > enter into legally-binding agreements to indemnify (which means to use
> > our resources to defend) third parties. I may be mistaken, though.
> > Could you please point out where you believe you derive this ability?
>
> I think I lost a thread of the argument here. How does the acceptance
> into non-free of a package by the ftp-masters commit SPI to a
> legally binding agreement?
The first paragraph of the license linked to by the original
announcement:
SUN MICROSYSTEMS, INC. ("SUN") IS WILLING TO LICENSE THE JAVA PLATFORM
STANDARD EDITION DEVELOPER KIT ("JDK" - THE "SOFTWARE") TO YOU ONLY
UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS
LICENSE AGREEMENT (THE "AGREEMENT"). PLEASE READ THE AGREEMENT
CAREFULLY. BY INSTALLING, USING, OR DISTRIBUTING THIS SOFTWARE, YOU
ACCEPT ALL OF THE TERMS OF THE AGREEMENT.
I'd say we pretty clearly are distributing the software.
The indemnification clause is under section 2, and reads, in part:
You agree to defend and indemnify Sun
and its licensors from and against any damages, costs, liabilities,
settlement amounts and/or expenses (including attorneys' fees)
incurred in connection with any claim, lawsuit or action by any
third party that arises or results from (i) the use or distribution
of your Operating System, or any part thereof, in any manner, or
(ii) your use or distribution of the Software in violation of the
terms of this Agreement or applicable law.
Both from http://download.java.net/dlj/DLJ-v1.1.txt
> But even setting aside the questionable assumption that the license could
> actually create this situation, I think I missed where the Debian
> ftp-masters are legal agents of SPI and are in any way capable of
> committing SPI to any sort of binding contract. We had this discussion
Exactly correct, and my point exactly.
It seems that we've got one of two pretty bad situations:
1) That the ftp-masters somehow do have legal authority to do this,
and have just bound SPI to indemnify Sun without SPI even realizing
it
2) That the ftp-masters lack the legal authority to do this, in which
case Debian (and by extension, SPI) is in violation of the Sun
copyright on Java by distributing it outside the terms of a valid,
in-force license
> all the way back at the beginning of this thread, and I've yet to see how
> the actions of the ftp-masters create any legal jeopardy for anyone other
> than themselves and possibly non-free mirrors.
If Debian is violating a license, what is the target for a copyright
holder lawsuit?
Perhaps it is the individual ftp-masters, but I don't think that SPI
is very far removed from this picture. And of course, if you're some
MegaCorp, you could just sue everyone in sight, just to be sure.
> How does legal liability for SPI enter into this picture? I'm
> confused.
Does the above help explain a bit?
> > And Debian is not SPI's governing body. Debian is not a legal entity on
> > its own (after all, that's why SPI was created). If a legal entity must
> > enter into an agreement on behalf of Debian, that legal entity is SPI.
> > No SPI member project is authorized to make contractual arrangements
> > like this on behalf of the whole organization, and thus potentially harm
> > not just their own project but also SPI and other member projects.
>
> Which would imply that no legal agreement has been entered into on behalf
> of Debian, yes? If SPI is the only body who can do that, and SPI has not
> delegated that authority to anyone who took an action in this situation,
> problem solved, no?
Nope, because now we are in the situation of Debian illegally
distributing software.
> The advice to check with SPI's lawyers I *do* agree with. I think it
> would be excellent if they were involved, and I think it would be an
> excellent idea to involve them even now. If nothing else, I expect that
> would neatly cut through the uncertainty and legal speculation and provide
> a real opinion on the license.
I would be very pleased if someone from Debian would like to post a
useful summary, with links, to spi-board (or whatever list is
apporpriate that Gregory reads).
If Gregory thinks it is all sane, I wouldn't have a problem with it
going forward from SPI's point of view.
Though I do still maintain that the proper thing to do would be to
have brought SPI into the loop to begin with.
-- John
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