To OSI License Discussion subscribers,
From: Graham Bassett <[EMAIL PROTECTED]>,
There is authority to show that, at least by analogy, equity could allow such specific performance. Multiple developers could be joined in an action or the open community or communities who have overseen the development could effectively represent the interests of such distributed developers. Critically, the organiser of such a community may be seen to have a fiduciary duty to their members as Bulun Bulun was seen to have to his tribe when he coded the dreams of the Ganalbingu people in an artistic fashion. (John Bulun Bulun v R & T Textiles Pty Ltd [1998] 1082 FCA per Doussa J [www.austlii.edu.au] 23/08/01):Graham, you make a very good point. Indeed, there is an increasing need to establish liability using measures other than money. I suspect that such measures will be codified in response to the proliferation of no-fee services, though, rather than Open Source software.
"The conclusion that in all the circumstances Bulun Bulun owes fiduciary obligations to the Ganalbingu people does not treat the law and custom of the Ganalbingu people as part of the Australian legal system. Rather, it treats the law and custom of the Ganalbingu people as part of the factual matrix which characterises the relationship as one of mutual trust and confidence. It is that relationship which the Australian legal system recognises as giving rise to the fiduciary relationship, and to the obligations which arise out of it."
Aren't code writers the interpreters of our dreams in the digital world? The leader of the community could be the equitable owner of the copyright in the code made by the collective. The organiser's fiduciary role would then be to seek specific performance of any breach for, and on behalf of, the community who have given him or her their trust and confidence as part of the factual matrix in the development of the code.
However, while such measures could be used by Open Source authors to seek redress against proprietary vendors such as you suggest, it could also come back to haunt if a large user of Open Source packages decides to sue, or otherwise go after, their author(s). Admittedly there would be no reason for them to do so, but the possibility can't be discounted.
BTW, hello from a fellow Australian :-)
Cheers, Nathan.
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
