Re: Who can make binding legal agreements
On Tue, Jun 06, 2006 at 08:11:21PM -0700, Russ Allbery wrote:
> John Goerzen <email@example.com> writes:
> > On Tue, Jun 06, 2006 at 07:43:10PM -0700, Russ Allbery wrote:
> > 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.
> You believe that it's pretty clear that *SPI* is distributing the
> software? Could you trace your reasoning here?
Sure. SPI owns many of the machines that Debian owns. If any of
these machines are being used to distribute this software, as I think
is likely, then SPI could be liable.
Not only that, but while the Debian constitution says that Debian
developers are not agents of SPI, and SPI (and I) agree with that, I'm
not so sure the line would be that clear to a court. But maybe it
would, I don't know.
> I and several other people have been saying for some time on this thread
> that the actual situation is:
> 3) SPI has no legal liability for the actions of the ftp-masters. That
> legal liability is born by the ftp-masters themselves and possibly
> by the mirror operators who carry the software in question.
Well, the ftp-masters probably do have a liability, but as an entity
involved in distributing the software -- even if distributing them to
mirrors -- I wouldn't be too hesitant to rule SPI out of this picture.
> > If Debian is violating a license, what is the target for a copyright
> > holder lawsuit?
> *Debian* does not exist as an entity, which means that the only legitimate
> legal target for such a lawsuit would be the legal entity that performed
> the action. Given, as you have said, the ftp-masters are not officers of
> SPI or acting on behalf of SPI, it seems pretty clear that the buck would
> stop with them.
The argument I fear is that Debian is a member project of SPI, and SPI
handles Debian's assets, and that the problem is with Debian,
therefore Debian's assets as held by SPI could be ripe for taking by
But I understand your reasoning as well.
> > 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.
> Well, yes, but they can do that no matter what anyone did. I'm not sure
> the ability to target lawsuits at random entities not actually involved is
> a persuasive argument for any position.
True enough. I just would want to give people as little grounds for
any lawsuit as possible.
> > Nope, because now we are in the situation of Debian illegally
> > distributing software.
> *Debian* does not legally exist, and therefore cannot possibly be
> illegally distributing software.
Should I say "Debian, Project of SPI" here to keep us out of obscure
I can see what you're saying. I fear that a line is not so clear to a
court or to an plantiff, and even an unsuccessful suit against SPI
could cause a good deal of damage. I'd rather err on the side of
caution and not give anyone the opening, unless SPI's attorney
believes the license as-is is safe.
I believe that there is room for concern (the concerns that I've
voiced). I don't know whether or not these concerns really have
merit. But then, nobody else here does (as far as I know, no real
lawyer has chimed in here.)
This is the reason we run things by our attorney -- because he knows
about them better than we do, and can give us solid advice. And, I
think, the reason it would have been good to run this by our attorney
before posting it online.