Lift11: Michel Jaccard, Governances of multi-author and open source collaboration projects (best practices and legal tips) [en]

Lift11 Workshop notes. I do my best but all this is filtered through my sometimes imperfect brain.

Practical and legal issues. First, defining the scope.

Common question faced in their practice: what do I do with my employees who are spending paid time on Facebook? Can I run commerce online?

What are we talking about? Open collaborative projects. Two types:

  • OSS (software)
  • R&D and knowledge-sharing projects (Wikipedia, standard-setting bodies, consortiums, WTO, etc)

We’re going to focus on Software projects.

Basic question: is there a necessity to think differently in the online world compared to the offline world? Most of the time, in regulation, it’s not needed. Most legal rules can be applied, with some subtleties.

What makes open collaborative projects different from more traditional creative work efforts? IP laws have been designed around the idea of a single creative mind (Shakespeare and Mozart), but today, most projects result from a collective effort. Mismatch.

Issues — practical and legal.

Practical: massive number of participants, continuous updates for long-term projects, hard to keep track of all contributors (case of company unable to contract with a US company because they’d outsourced part of their work to an ill-defined community and it had become impossible to get back to the various participants), lack of control in cross-border projects, funding/sale of project (who does it?), enforcement of rights.

Legal: international => different legal regimes, no unified set of rules applicable to the project, numerous legal fields (IP, contract, corporate)

Multi-author (=> joint work, article 6 Swiss Copyright Act or “joint works” pursuant to section 101 of the US Copyright Act) — does each author detail a copyright on the joint work? Which law is applicable? you can’t claim ownership of part of the work. Default system in copyright law is unanimous agreement of all co-authors for what you’re going to do with the work… tricky. (This means it’s a little dangerous to launch into a collaborative project without some kind of agreement.)

Private international law: which is applicable, which jurisdiction, special local protection rules, privacy issues?

Contract law: who is party, is there a contract law relationship? Who is accountable of what towards whom?

When it comes to businesses you can put pretty much what you want in an agreement, not so with individuals.

Is having a “lead person” sufficient an agreement to interface with other parties?

Not securing the IP aspects of a software project can negatively impact the valuation of the company. Have agreements in place before anybody starts writing a single line of code…

IFOSS Law Review — took them 2 months to figure out a name, and 3 months to get funded, and the editorial board is a bunch of experts on the topic — couldn’t open a bank account! They ended up being funded by the Mozilla Foundation.

Needs: centralization of rights on the project to overcome some legal issues, minimum quality standards, governance on the general project.

What can be done?

Do everything beforehand. Governance. Make an agreement, but do you have the authority to do so? Everything need not be negotiated — acceptable rules for contributors, can be 3-4 pages. Just to say that the rules governing the community will be those the community comes up with.

*steph-note: sorry, going a bit fast and the topic is “out of my jurisdiction”, having trouble following*

3 types of governance rules (access, …, …)

  • access (no legal access regime by default)
  • assign IP to the community (= sale) — vs. license, which is very difference

Under Swiss Law, ToS that are 34 pages long are not enforceable, even if you make people click “I read and agree”. Will not stand in court. It needs to be concise. Good faith: if I don’t understand, I am not bound. It’s up to the person making you agree to make sure you understand what you are agreeing with. Swiss market is a bit difficult for online purchasing — often the terms are just in German! *steph-note: this sounds too good to be true, not 100% I understood this completely correctly*

Important to set up governance that will allow an exit.

WIPO. Approved “Open collaboration projects and ip-based models” project in nov 2010. Will analyze and compile existing models of Open Collaboration projects.

In 90% of situations Creative Commons works, but what’s missing is something similar to CC but which includes governance.

Badmouthing (with authorization): Business Model Generation, co-created with 470 ppl, but copyright Alexander Osterwalder and Yves Pigneur, and designed by a third guy. Trick question: who owns the IP? On the online platform, it says copyright Alexander. Now that they’re starting to be famous with the book, they’re pretty suable. It’s a total mess in terms of ownership. Would be problematic for derivative works where you need consent of all authors. But actually they even made people pay to be co-creators, and told them they’d get credit and receive a free copy. Nothing however about IP…

Wikipedia: another nightmare. user-generated and user-controlled. 5 pillars, but any user can modify the policies. Foundation reserves certain legal rights. They realized that the consensus stuff didn’t work and had to put in place committees etc. — would have been less trouble if they’d put it in place at the very start. *(steph-note: @anthere disagrees — might also be me not understanding well what was said, so take with a big grain of salt)*

Other example: Mozilla project. Governed as a “meritocracy”. Policies. 3 aspects: definition of roles and responsibilities, transparency, reciprocity.