I absolutely agree and love the pasta analogy :DOn 2014-11-10 05:45, Magdalen Berns wrote:
On Mon, Nov 10, 2014 at 4:09 AM, Karen Sandler <karen punkrocklawyer com> wrote:
On 2014-11-09 20:23, Michael Catanzaro wrote:
On Sun, 2014-11-09 at 18:48 +0000, Magdalen Berns wrote:
The challenges the OPW organisers face is in figuring out how to
encourage projects and mentors to sign up and yet also protect GNOME
from a potential lawsuit in the event that things go horribly wrong as
a result of something that may not be GNOME's fault.
I don't see much of a challenge. The wording under question is:
"For only situations arising out of your gross negligence, recklessness
or intentional wrongdoing, you shall indemnify, defend, and hold
harmless GNOME, its officers, directors, and employees from any and all
claims, demands, damages, costs and liabilities, including reasonable
attorneys’ fees, made by any third party due to or arising out of your
participation in the Program; your Mentoring Activities (including
correspondence with the Participant or Participants, and modification of
any Participant’s source code or written materials); or your violation
of this Agreement."
This is really mundane: I agreed to a more restrictive indemnification
than this by simply reading CNN.com today. So has anybody who's ever
used Skype, or Flash, or Facebook. (Seriously, check the ToS of Facebook
or CNN, the two I bothered to check; they're very similar and include
the provision about attorneys' fees.) Or the Internet, really; I'm
surprised I didn't have to agree to indemnify my ISP, though maybe that
was part of my contract and I just forgot. Anybody can sue anybody for
anything, and I highly doubt being an OPW mentor will increase the
likelihood of my ending up in court.
Thanks Michael.
We very much tried to limit the contracts as much as possible, to figure out how to set up the infrastructure to host the program without unduly burdening the intern and mentor contracts only have indemnities triggered for "gross negligence, recklessness or intentional wrongdoing", as discussed in the previous thread (this is actually a pretty high bar). Not only do I think that this legal infrastructure is necessary in order for the Foundation to host the program, but some funders also require that it be in place.
Obviously. The thing about funders is that a lot of them are
businesses who will used to imposing terms on individuals and figuring
out how to remove any accountability from themselves. As a charitable
organisation, of course GNOME is sensible to take steps to listen to
the advice and recommendations of its funders about how OPW is run but
that should not mean that we have to blindly use their design in a
case where it is going to be detrimental to OPW's core mission.
It's important to recognise what motivates people in something like
this because ultimately, no amount of money that these funders have to
offer is worth the trade off if OPW finds it is not able to find
decent mentors and the interns do not end up staying on as
contributors FLOSS because they have had a poor experience under this
model.
These women are not pieces of pasta you can throw at a wall to see
which ones are sticky enough to stay on it. They are human beings who
have already been identified as being likely to face discrimination in
FLOSS. It is a mistake to apply a generic legal structure which let's
face it, have absolutely no track record of solving the problems that
OPW is trying to address (if anything the converse).
Our legal structure was designed by us with deep consultation from a law firm that helped us pro bono (Justin Colannino who worked with me at SFLC was our primary contact and he brought in varied experience, like employment law, from partners in the firm). Our starting point was GSoC because it's the closest program to what we're doing but we veered from it considerably, both to impose less liability to our mentor and intern participants and also to reflect that our program is very different (and that we're a nonprofit). What we settled on is the lightest weight agreement I could come to with those lawyers that was functional for the Foundation.