You're not reading the indemnification language correctly. The only thing you're indemnifying the FSF for is if it turns out that your claim that you are the sole copyright holder turns out to be incorrect (e.g. you passed off others' work as your own).
in defense of "contributor agreements" or whatever they are called nowadays
Posted Apr 14, 2011 4:04 UTC (Thu) by wahern (subscriber, #37304)
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Right. But that can happen accidentally. But per the terms it doesn't matter whether it was an accident or not.
By way of example, let's say that hypothetically some court says that interfaces are copyrightable, like Oracle claimed for Java. All of a sudden that contribution of code implementing the Java API is infringing. Or rather, it was always infringing, but only now do you know that.
Or you're an employee of a software company. The free software code you wrote happens to be so related to your company's business interests that it falls within the scope of your employment, so the code is theirs. The FSF probably tries to screen these people in their questionnaire, but they can't always be right about it.
There are tremendous grey areas in copyright law, and the FSF clause shifts most of the repercussions of this onto you. That's its very purpose. If they didn't want to do this, they would have qualified it with a variant of something like "known or should have known". The Ubuntu language, "to the best of my knowledge", is even more pro-contributor.
Also consider that you're indemnifying for any "alleged breach." So maybe you were in the right, but the FSF chose to settle out of prudence. You're still on the hook. But now let's say you can find a way around the language, or that my interpretation is totally bogus. My interpretation isn't so bogus that you won't be forced to spend thousands of dollars on an attorney to make your case.
But now let's say that we all agree none of the FSF officers would ever willing do any of this. (Which probably goes without saying.) I don't know much about non-profit governance, but if it were a for-profit corporation the benevolence of the officers doesn't matter much. If they don't sue they could possibly be on the hook for shirking their duty to protect the corporation.
None of this is worth discussing anymore, though. Frankly, I was just surprised that these organizations would use this language, and even more surprised that Ubuntu didn't. In reality we all take much greater legal risks every day.
in defense of "contributor agreements" or whatever they are called nowadays
Posted Apr 14, 2011 9:53 UTC (Thu) by mjw (subscriber, #16740)
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Not disputing that there are always legal risks in whatever activity you do, but I think at least some of your worries in this case are somewhat covered.
> it was always infringing, but only now do you know that.
In my contract with the FSF it explicitly says "(to the extent known to Developer)".
> The free software code you wrote happens to be so related to your company's business interests that it falls within the scope of your employment, so the code is theirs.
They also send you a separate company disclaimer of rights which you can then let your company sign. You can keep that on file (or also send to the FSF) to show they were aware and approved of your actions.
> Also consider that you're indemnifying for any "alleged breach."
In the FSF contract I got it says "Developer is not obliged to defend FSF against any spurious claim of adverse ownership, but will cooperate with FSF in defending against any such claim"