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Who can make binding legal agreements

On Tue, Jun 06, 2006 at 09:43:02PM +1000, Anthony Towns wrote:
> On Sun, Jun 04, 2006 at 03:59:03PM +0200, Dalibor Topic wrote:
> Mmm. The impression I got was that people were waiting for the packages
> to be removed from Debian and no one was really all that interested in
> responses from Sun, cf:
>    http://lists.debian.org/debian-legal/2006/06/msg00025.html
>    http://lists.debian.org/debian-legal/2006/06/msg00031.html
>    http://lists.debian.org/debian-legal/2006/06/msg00051.html

That msg00051 was my message raising the concern about SPI's role in
this.  A message that had nothing to do with Sun, everything to do with
our legal right to do what you have done, and which received no reply

[ snip ]

> And people are welcome to hold that opinion and speak about it all they
> like, but the way Debian makes the actual call on whether a license
> is suitable for distribution in non-free isn't based on who shouts the
> loudest on a mailing list, it's on the views of the archive maintainers.

I am becoming increasingly concerned at the unilateral method in which
you and/or the archive maintainers have taken this decision.

The ability to enter into a legal contract to indemnify a third party
should be, and arguably IS, reserved solely for the SPI Board of
Directors.  I don't recall even a heads-up to the SPI board.  Nor do I
recall any SPI resolution, past or present, delegating the ability to
enter into such an agreement to any Debian developer, archive maintainer
or otherwise.

By taking this action, you have committed SPI to expend resources in the
event of legal action.  Worse, SPI wasn't even *aware* of this.

A case could be made that since you did not have authorization to enter
into this agreement with Sun that the agreement to indemnify is void,
but then we (both SPI and Debian) are in even worse shape as the
permission to distribute Java also may be void in that case.

> to decide what's more important: taking a principled stand that we'll
> read every license literally and pedantically; or take advantage of
> other means by which we can be confident in distributing the software,
> and in so doing build a relationship with Sun that can be used later,
> and improve the experience of using Debian for people who need Sun Java?

You didn't even give SPI the chance to run it by our attorney before
posting the software, and now you present it as a fait accompli.  Why
would it have been so hard to learn, from a legal expert, whether this
really does pose a problem to Debian or SPI -- in advance?

Why did you not consult people about this?

It doesn't improve the experience of Debian for people, regardless of
whether they need Sun Java, if Debian and SPI are run into the ground
because of a lawsuit.

> Certainly there are benefits to having a license that can be read
> literally and pedantically without causing problems -- and they're not

If Debian agress to do X, and commits to doing X via a legal contract, I
fail to see what real difference a "pragmatic" vs. a "flexible" reading
would provide.  Either we agree to do X or we don't.

> in the past. But when standing up for that principle doesn't actually
> protect our users, and taking a flexible approach to it helps them, well,
> we have a social contract to make sure we do bend at this sort of time.

The social contract should not be used as an excuse to take unwise legal
risks.  Nor should it be used as an excuse to bypass proper channels for
approving legal contracts.

> participating on the -legal list; -legal meanwhile have been obstructive
> in trying to tell Sun what their license means, even when that contradicts
> what Sun understands their license to mean as documented in their FAQ,
> and verified by their lawyers.

If Sun would commit to putting that interpretation in their license,
that would be one thing.  But as an aside as it is, with no legal
standing, who is to say that other lawyers or a judge wouldn't decide it
means something entirely different?

This is an important check that SPI's attorney could have helped with.

SPI projects shouldn't be taking advice from Sun's attorneys.  We should
be taking advice from SPI's attorneys.

I am greatly troubled by the lack of foresight and communication with
which this situation has been handled.  It feels very much that the
interests of Sun have been placed ahead of those of Debian (and, by
extension, SPI).

I am also troubled about the potentially murky legal water in which we
are now, with a potentially unauthorized agreement with Sun and thus
potentially unauthorized downloads in non-free.

And I know you would like me to just go away and shut up about this, but
this project is too important, and this action has too many unknowns at
this stage, to just put blind faith in Sun's lawyers doing the right
thing by Debian.

-- John

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