OpenNTF.org IP Working Group Meeting 6.18.2009

OpenNTF Alliance

IP Working Group MeetingJune 19th, 2009

6.19.2009 2 Footer Field

THIS CALL IS BEING RECORDED

• We are recording the call and will publish a mp3 file as meeting minutes

• If you do not agree to being recorded, please hang-up now

• The slides will be posted on Slideshare.net and both will be linked in the IP WG Forum


Agenda

• Introductions• Copyright Overview• OpenNTF.org Alliance Structure• Company Membership• Individual Contributor Waivers• Repositories, Open & Cleared• Committers• Project Workflow


OpenNTF.org IP Working Group

• John Head– Director, PSC Group, LLC– OpenNTF.org Steering Committee Member– IP Working Group Chairman

• Peter Tanner– IBM– OpenNTF.org IP Manager


What is the IP Working Group?

• Covers discussions about Intellectual Property and Governance issues for OpenNTF.org

• Presents Resolutions to the Steering committee

• Works with the Technical Committee to make sure changes are inacted


IP Working Group Focus - Today

• Copyright Education• Alliance Membership• Repository Process• Licensing• Not for Profit Creation


IP Working Group - Process

• Discussion in Forum• Conference Calls to Educate / Discuss• Proposed Resolutions in Forum• WG Chairmen makes final decision on

what is proposed to the Steering Committee


Agenda

• Introductions• Copyright Overview• OpenNTF.org Alliance Structure• Company Membership• Individual Contributor Waivers• Repositories, Open & Cleared• Committers• Next Steps


Copyright Education

• The Steering Committee has charged the IP Working Group to education the OpenNTF.org community on copyright laws

• This education will be ongoing– Quarterly reviews– Exposed to new members at sign-up– Etc

• This is the first step in Copyright Education

Copyright and Computer Software

Basic Issues Facing International Open Source Collaboration

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Before We Begin - Legalize

• This does not substitute for legal advice, nor does this imply an attorney-client relationship. All employment situations are unique, and this presentation should not take the place of obtaining legal advice that addresses any individual’s situation.

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International Copyright

• Every country has its own laws and policies regarding copyrights

• The Berne Convention, an international copyright treaty, established minimum levels of copyright protection that each member country must provide

• Copyright protects original works fixed in any tangible medium of expression, including computer programs

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Employer/Employee: Who Owns the Copyright?Who owns the Copyright?

• Each country has it owns rules that apply• Determine if there is a preexisting contract • Determine if the individual is an employee

or independent contractor• Might be a different answer for economic

rights and moral rights

6.19.2009 14

Economic Rights vs. Moral Rights

• Economic Rights• Right to reproduce

the work• Right to control

derivative works • Right to take action

for infringement• Right to enter into

licensing

• Moral Rights• Right of attribution

of authorship• Right of integrity of

the work

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United States

• The employer or commissioning party holds the initial copyright if either:

• The work is prepared by an employee within the scope of his employment, OR;

• For a specially commissioned work, both parties agree in writing that the commissioning party will hold the copyright.

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United States

• Is a person an employee or independent contractor?– It depends on the hiring party’s right to control

the manner and means by which the work is accomplished

• Does it matter if the individual created the work during his personal time?– No, the employer could still own the copyright if

its within the scope of his employment.

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Factors U.S. Courts Examine

• Level of skill required to do the work

• Location of the work • Whether the hiring

party can assign more work

• Where the tools required to do the work came from or who paid for them

• Duration of the relationship between the parties

• Method of payment• Worker’s discretion

over when and how long they work

• Worker’s role in hiring and paying assistants

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Additional Factors

• Tax treatment of the worker

• Whether there are employee benefits

• If the work is a regular part of the business of the hiring party

• No one factor is determinative

• Weight given to each factor will differ depending upon the particular circumstances surrounding the employment setting

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Australia

• Employers own the copyright for a work made in the “course of employment” UNLESS there is an agreement otherwise

• Similar to the U.S., courts look at the totality of the relationship to determine if the individual is an employee

• In course of employment UNLESS it is so remote from the employer that it is altogether unconnected to the individual’s employment

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Canada

• Employer holds the copyright for works created in the course of an employment relationship UNLESS they are contrary contractual provisions

• Like U.S., there is a factual analysis of the relationship between the person paying for the work and the author

• Works created by officers and directors of a corporation in the course of their functions are owned by the corporation

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China

• Employer owns the copyright for computer software developed by the employee in accordance with the clearly stipulated development objective assigned to his position, regardless of an agreement– However, the employee will still own the moral

rights, e.g., right to be named the author

• The best way to avoid disputes is to have a clearly outlined agreement

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Germany

• Initial owners of copyright of works made on the job or on commission are always the individual who actually created the works

• Issues concerning copyright and the relationship between the creator and hiring party ALWAYS have to be resolved by reference to the contractual relationship

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India

• Employer owns the copyright for works made by employees in the course of their employment UNLESS there is an agreement to the contrary

• Contractors own the copyright for works created in a consulting relationship UNLESS there is an agreement to the contrary

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Japan

• Employer owns the copyright to a computer program if the individual is under an employment contract or an officer if it is created in performance of his duties unless otherwise stipulated

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United Kingdom

• Employer owns the copyright for works created in the course of employment subject to any agreement


European Union

• Copyright protected by each member nation’s copyright laws

• Members are required to protect computer programs


Conclusion

• Employees and Consultants should talk to their hiring party BEFORE contributing code

• You might not own the copyright even if you created code during your personal time

• Lawsuits are expensive to fight, even more expensive to lose, and take years to litigate

• There is no such thing as an innocent infringer. It doesn’t matter if you think that you own the copyright.


What does this mean for OpenNTF.org?

• We need to pick a country of origin• We need to protect ourselves

– Any legal action is expensive

• We need to have an IP violation policy– Who to contact– Open Process the IP WG will use

• We need to ignore “My family member is an attorney, I don't care”


Resolution (Proposed)

• RESOLVED, that, unless the Steering Committee decides to the contrary, the OpenNTF Alliance activities, including licenses and agreements, shall be governed by the laws of the State of New York and the intellectual property laws of the United States of America.


Agenda


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OpenNTF Alliance Governance Model OpenNTF Alliance has been created as a Member-based

No legal entity– Had considered creating a 501(c)(6), but abandoned effort to reduce red-tape,

legal cost and complexity Membership agreement “between and among” Members Organizations join as Members (with the approval of the Steering Committee) Individuals join as Users, Contributors or Committers (more on this later) Original OpenNTF corporation will retain ownership of website, and be represented

on the Board through the affiliated VinceSchuurman.com.

Steering Committee elected by Membership Open to representatives of Member organizations Sets policies and direction of OpenNTF Sets up Technical Committee and additional working groups as required (such as

the IP Working Group)

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Technical Committee

Consists of Member representatives and Committers as determined by the Steering Committee;

Determines the technical needs and requirements of the IBM Lotus Notes® community;

Establishes new projects to meet such needs; Sets up and maintains the OpenNTF software repository

infrastructure; Ensures the IPR Policy is followed; an Encourages the contribution of existing code from the community.

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Participation of Individuals Unregistered Users

May download contributions

Registered Users May also participate in Forums, file bug reports etc.

Contributors Must execute short IP waiver. May also contribute code to Open Repository

Committers/Project Leads Employer is either a member or has executed consent form May manage code clearance for Cleared Repository.

(More details under OpenNTF IP Model)


Agenda



Company Membership

• Open to all companies/organizations– No membership dues– But members are expected to “contribute”:

• assets• time• software• services

– see http://openntf.org/Internal/home.nsf/dx/Levels_of_Involvement


Company Membership and Contribution

• There has been some discussion that the Company Alliance membership should not be tied to contribution– Apache Foundation does this

• We are going to have legal council review this approach vs. the current approach

• I will report in the forum on legal council recommendations


To Join

• To become Member:• Execute Membership Agreement• Send to [email protected]• Steering Committee will vote on approval.


Agenda



Contributors

• Contributors may contribute code, however, the contribution

• Must be Registered User• Must send simple waiver to [email protected]• For of waiver varies depending on whether employer is

member– Confirms that you are author– And that you have the rights to contribute

• http://openntf.org/home.nsf/dx/Contribution_Process

• Employer waiver not required for Contributor

http://openntf.org/home.nsf/dx/Contribution_Process

http://openntf.org/home.nsf/dx/Contribution_Process


Agenda


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IP due diligence - Goals

Goal is to for OpenNTF to gain a reputation as a reputable, reliable and active source for code.

We want to encourage re-use of code by anyone, whether they are single users or large corporations. This maximizes the value of the submissions!

Protect OpenNTF and users from IP infringement concerns.

But need an approach that is flexible enough to handle current OpenNTF offerings (“heritage code”), and where there are issues surrounding use of the OpenNTF-preferred license.

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Repositories Today Currently, the Projects section is our only working repository

The Catalog was created to facilitate Rich Client projects such as Widgets, Composite Applications, Components, and more

Only IBM projects being in the Catalog has caused confusion

I want to separate the repository discussion from the technical implementation We can have multiple Catalogs

Projects that include code from IBM, or targeted for IBM reuse, require a cleared / managed repository

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Open Repository All contributions initially must be entered into the Open Repository

There are the following constraints: An OSI-approved license must be attached The submitter must be a Contributor (or Committer)

The Open Repository projects may be works in progress – dynamic, and open to contributions and suggestions from all.

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Cleared Repository The Cleared Repository would contain cleared snapshots of

submissions to the Open Repository.

These snapshots are stable – and would not be changed other than through the creation of a subsequent snapshot release.

Under the direction of a Committer or Project Lead, the steps listed on the following slide would be completed before the release is cleared.

A project requires the Committer assigned not be the Project Owner or the Release Contributor

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Repository Catalogs Based on the Domino Widget Catalog that comes with the Domino

Server

Allows easy downloading of widgets, composite applications, components, and more by end users

Catalog would contain releases

Releases would automatically populate the Catalog

Cleared Catalog would required the Committer Checklist to be completed


Agenda



Committers

• Committers are those with repository write access to the Cleared Repositories for one or more projects

• May be appointed by Steering Committee or elected by majority vote of exiting Committers.

• Those who have earned the trust and respect of their colleagues in the Notes community.


Committer Responsibilities

• Committer due diligence: Before any contribution may be added to any OpenNTF Project, the committer must be satisfied that the following conditions have been met:– the contribution has been submitted by “Contributors”– there is no indication of that any portion of the contribution comes from a

party other than the contributor, and that either a visual scan or automatic code scan has been done to confirm this:

– the contribution is licensed under an acceptable license and the appropriate license information has been included in the code; and

– is no encryption content in the code.

• If there are issues – the Committer will work with the IP Manager to resolve them.


How to Become a Committer

• Today the Steering Committee appoints Committers

• We need a form and process for someone to submit themselves as a Committer

• These would be vetted by the IP Manager and approved by the SC or by a vote of the Committer community.


Agenda



Resolutions based on WG Forum Feedback

• Concern that Contributors require employers permission. – Resolution – remove requirement for Open Repository.

However, IP check will need to done for movement of code into Cleared Repository.

– Passed 6.17.2009

• Inconsistency between various documents on the licensing contributions to OpenNTF.– Resolution – remove “Under the IP Policy, contributors give OpenNTF rights

for perpetual, worldwide, non-exclusive, no-charge, royalty-free, patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer of the code.” from Contributions document.

– Passed 6.17.2009


Resolutions based on WG Forum Feedback (cont)

• Terms of Use has inadequate protection for widgets that make use of existing popular URL's (such as widget for Twitter or YouTube).– Resolution (Proposed) – in consultation with attorney,

add wording where OpenNTF makes no representations about such website use, and places onus on user to abide by websites' terms or service.


Resolutions Passed

• Peter Tanner of IBM be appointed as the IP Manager for OpenNTF

• 6.17.2009


Resolutions (Proposed)

• Resolved that:– That the IP Manager develop the appropriate IP Violation procedures, following the

approach established by the Digital Millennium Copyright Act. – That the IP Manager develop the documentation and process for a contributor to

submit themselves to be a Committer– That the IP Manager develop the initial Committer Checklist for approving Managed

Releases. This checklist would be placed in the IP WG Forum for discussion. There would be an initial checklist done once for each project and a checklist for each release

– That a Project Release must be approved by a Committer other than the Contributor/Committer if the person publishing the release is a Committer

– That the IP Manager develop Individual Membership procedures for the OpenNTF.org Alliance. Individual Members must be approved Contributors. Individual Members can be members of any committee or working group

– That the membership of the Steering Committee can not contain more than one person from a company, regardless of Company or Individual Memberships with the OpenNTF.org Alliance


Resolutions (Proposed) (cont)

• Resolved that:– That the Working Group recommend a dual repository approach as

discussed during the IP WG meeting of June 19, 2009, and that the website and contribution documents be amended appropriately.

– That the Technical Committee create a managed repository. This repository will only allowed cleared releases by a Committer. An automated workflow process would facilitate this process to be as automatic as possible.

– That the Technical Committee implement an Employer Copyright Waiver Status on the User Profile. This field will be editable only by the IP Manager. The IP Manager would set the status to Approved when the Employer Copyright Waiver is approved.

– That the Technical Committee implement a feature to allow a Project Chef to only allow Project Contributors who have the Employer Copyright Waiver Approved status on their Profile.


Resolutions (Proposed) (cont)

• Resolved that:

– That the Technical Committee implement a Domino Catalog for both Open and Managed projects. The publishing to the Catalog would be automatic and would take place after the Committer Checklist is completed.

– That the Technical Committee modify the Project Release process to allow the Contributor to submit a Release for Comitter Approval

– That the Technical Committee will create a repository for Company Membership, Individual Membership, Contributor Waivers, Committer Submissions, and Employee Copyright Waiver paperwork. This repository would be accessible by the Steering committee and editable by the IP Manager


Next Steps

• Schedule Conference Call on Licensing• Expand WG once Steering Committee

approves WG rules• Start the Not for Profit Process• Create FAQ's for

– Company Alliance Membership– Individual Alliance Membership– Employee Copyright Waivers– Committer Sign-Up Process– Contributor Sign-Up Process


Questions?

OpenNTF.org IP Working Group Meeting 6.18.2009

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