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Re: Who can make binding legal agreements

On Tue, Jun 06, 2006 at 09:35:41PM -0500, John Goerzen wrote:
> On Wed, Jun 07, 2006 at 12:02:16PM +1000, Anthony Towns wrote:
> > > 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.  
> > If SPI wish to withdraw from their relationship with Debian, then that's
> > entirely possible to arrange. I don't think it's at all proper that you
> Nobody was suggesting that, and I fail to understand why it is in
> anyone's interests for you to ratchet up the heat on this issue
> another notch by making remarks like that.

I don't understand why, as SPI President, you'd bring up concerns
regarding SPI's legal position in the middle of a thread on -devel and
-legal, without having discussed it on spi-board, having consulted SPI's
attorney as to the validity of your concerns, or having contacted me as
DPL or the archive administrators privately first, either.

> > try to obtain veto power of Debian's activities as conducted by the duly
> > authorised members of that organisation.
> 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.

From the xorg-x11 copyright file:

] 11. Indemnity. Recipient shall be solely responsible for damages arising,
] directly or indirectly, out of its utilization of rights under this License.
] Recipient will defend, indemnify and hold harmless Silicon Graphics, Inc.
] from and against any loss, liability, damages, costs or expenses (including
] the payment of reasonable attorneys fees) arising out of Recipient's use,
] modification, reproduction and distribution of the Subject Software or out of
] any representation or warranty made by Recipient.

From the openoffice.org copyright file:

] Therefore, if
] a Contributor includes the Program in a commercial product offering, such
] Contributor ("Commercial Contributor") hereby agrees to defend and indemnify
] every other Contributor ("Indemnified Contributor") against any losses, damages
] and costs (collectively "Losses") arising from claims, lawsuits and other legal
] actions brought by a third party against the Indemnified Contributor to the
] extent caused by the acts or omissions of such Commercial Contributor in
] connection with its distribution of the Program in a commercial product
] offering.

> Secondly, I am saying that you should have contacted SPI *first*, so
> we could get advice from our attorney, and enter into agreements
> properly.

I realise that's what you're saying; but if SPI are not willing
to endorse the standard methods by which Debian operates -- having
the archive administrators review licenses of new packages -- and the
standard methods by which Debian reviews decisions -- public discussion
with the original decision makers empowered to change their minds, and
overview by the technical committee and the developers as a whole by
general resolution, then we need to change Debian's relationship with
SPI so that is not an issue.

> So I ask again: where do you derive your authority to enter into a
> legal obligation to indemnify Sun in this situation, and what legal
> entity do you believe is bound to honor that obligation?

The authority of the DPL and archive administrators is derived from the
Debian constitution.

For reference, it says:

] 9. Software in the Public Interest
]    SPI and Debian are separate organisations who share some goals. Debian
]    is grateful for the legal support framework offered by SPI. [...]
]   9.1. Authority
]     1. SPI has no authority regarding Debian's technical or nontechnical
]        decisions, except that no decision by Debian with respect to any
]        property held by SPI shall require SPI to act outside its legal
]        authority, and that Debian's constitution may occasionally use SPI
]        as a decision body of last resort.
]     2. [...]


Anthony Towns -- Debian Project Leader

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