Fwd: [uf-discuss] Legal implications of using Microformats

[Joe Andrieu]

Friday, April 27, 2007 9:23 AM, Manu Sporny wrote:
> Brian Suda wrote:
> > --- if you can give-us any other information, who exactly 
> the company 
> > is, etc and any other information from the legal team we 
> can attempt 
> > to work around these problems or debunk the FUD.
> 
[snip]

> > For those of you that don't know where this discussion 
> > started - it was started by Guy Fraser on microformats-new:
> > 
> > http://microformats.org/discuss/mail/microformats-new/2007-April/000241.html

> The concern is that there is no standard copyright or patent statement or policy that applies to the entire
> Microformats website. Specifically the examples, formats, brainstorming, proposal, draft and specification
> pages have a mix of copyright statements (some not at all). This can cause problems if an individual authors
> a Microformat without releasing copyright or patent claims.

> Microformats can stick around in the "draft" process for a long time. Often they have a statement of 
> intent" to release it under a certain copyright/royalty-free licensing model. "Intent to provide under no 
> restrictions" is very different from "provide under no restrictions".

[snip]

I share Manu's concern and have had minimal luck trying to get traction on this topic on the open-issues section of the wiki and in
my conversations with Rohit and others.

Despite the terminology, Brian, it isn't simply a matter of FUD. It's a matter of the actual legal rights and licenses.  The
disconnect between the copyright statements on the microformats themselves and the blanket assertion on the website and elsewhere
that "uFs are released under creative commons" is a misrepresentation, one that may or may not create liabilities for the admins,
but it certainly creates uncertainties for any potential uF user and developer.

The problem is this: when I place a bet on a technology like microformats, I'm betting that the underlying licenses will allow me to
do business effectively on predictable terms throughout the lifetime of my business. In fact, I'm betting not just my effort, but
the considerable investments made in my company by others.

The first ramification is that the current licenses are de facto and may not be securable should a dispute arise. I'm not a lawyer
so I won't dive into the issue of whether or not there is an implied license and whether or not that would be upheld in a court.  I
shouldn't have to speculate about some potential future licensing arrangement by the holders of the uF copyrights. It should be
known today, at the point that I contribute to, and utilize, the IP being developed by this community.  

Second, it's even worse if a copyright holder or admin is simultaneously attempting to secure patents that read on uFs. That's
coercive and manipulative, and given the assertions by the admins that uF will be CC, could constitute anti-trust behavior should a
patent holder later attempt to assert such a patent after establishing a uF as a de facto industry standard.  Fortunately, I know of
no one who is actually making such an attempt. However, without a clear, binding statement on behalf of those creating the IP, it is
always a possibility.

Third, there is no actual legal entity to license from, negotiate with, and seek redress from should such a problem arise. If the IP
for microformats was owned by a single entity, such as a trade association or standards body, then one would at least have a single
point of recourse in case the "promises" run into problems, such as perhaps not being owned by the individuals who offered it to the
community (because it is owned by their employer, for example).  Instead, the copyrights and liability for community action are
disturbingly spread throughout a number of individuals.  Any one of whom could make a frustrating choice, or overlook a complicating
situation, and thereby trigger a cascade of issues and potential lawsuits.

Having the IP in an ambiguous state is a mess.

I'm well aware of the anti-trust concerns of several members of the cabal, as well as the apparent belief that ignoring these issues
is the "lightweight" way to grow this movement.  However, several companies have already backed off their involvement in uF
precisely because the licensing and liability issues are so murky.

A particular challenge is that the vast majority of companies who make similar decisions will not bother to explain it to the rest
of the community. Once the choice to move on is made, there is precious little return from trying to convince a
governance-challenged cabal to actually change their behavior. A dismissal of the legal issues does not make the legal issues go
away. It makes those who understand the legal issues go away.

I understand that some members of the cabal have been discussing these issues, but I've yet to see or hear of any proposals to
address them.  Brian's most recent response leads me to believe that the "do nothing" faction is carrying the day, hence this email.


My apologies to those who may be earnestly trying to come up with a viable solutions.  If you are out there, please give us a report
on where things stand.

Cheers,

-j

--
Joe Andrieu
SwitchBook Software
http://www.switchbook.com
joe at switchbook.com
+1 (805) 705-8651