> Anthony: Would it be possible to write in that no
> one may form a contract on behalf of the partnership
Alain: Hear! Hear!
Eric: Yes, but a third party who would be unaware of
this could claim - justifiably - that he thought that
a partner had the right to enter into a contract.
Because 3d parties can claim 'reasonable reliance'
this protection is more theoretical than real.
Alain: What kind of voodoo is this?? Ignorance of the
Law has never been a legitimate excuse for breaking
it. Doesn't the same principle apply here?
Eric: Thus the restriction in flexibility is probably
not worth the limited risk protection. But if you
want, yes such a provision can be included.
Alain: I am frankly bewildered that such a clause
would be so worthless, but so be it. I will take
another tact now. You spoke of partners "owing each
other a fiduciary duty". I would argue further that
part of this duty is to NOT expose anyone in the
partnership to liability by contracting with someone
that believes that you are acting on the part of this
partnership. Any partner may engage in business, of
course, but he must make it unambiguously clear to his
client(s) that these ventures are his own, and have
absolutely nothing to do with our partnership.
Eric: It would have the effect of forcing a unanimous
vote on any contract entered into by the partnership
Alain: OK.
Eric: which is good for the eventual contract with MC
Alain: Yes, it will increase the stability of our
virtual organization, despite its virtual-ness.
Eric: ... but bad if you envision other contracts for
the partnership - .e.g. licensing the software to
third parties and end users.
Alain: We are open source. We will already be
licencing the software to third-parties and end-users,
for free.
Eric: I do not recommend it, but my non-recommendation
of such a provision is not 'strong' - i.e. a good
lawyer could justify either including or not including
such a provision.
Alain: Let's put it in there, but solidify it further
by putting a clause in the partnership agreement that
insists that any partner venturing into business for
himself clearly inform his client(s) that these
ventures have nothing whatsoever to do with our
partnership.
Eric: We could for example include a provision stating
that the licenses and contract with MC require
unanimous approval.
Alain: Unanimous approval from the partners. OK.
Eric: Most partnerships permit any partner to enter
into contracts which bind the partnership because this
gives the partnership greater flexibility.
Alain: Yes, but in most partnerships the partners know
themselves well enough to allow for this kind of risky
behavior. And even in these cases, if the decision is
sufficiently important, then it will not be left to
the discretion of any particular partner.
Eric: As for the partnership holding the copyrights
and other intellectual property: there is no legal
problem with this.
Alain: I am glad to hear this.
Eric: Essentially each partner and associate would
hold an equal percentage in all rights to any
partnership property.
Alain: Intellectual property for the most part.
Eric: corporations and states are legal persons, and
so are you, unless a court declares you out-law. Yes,
you can be declared a legal non-entity.
Alain: More legal voodoo, eh! If you are deemed a
legal non-entity does that mean that Laws no longer
apply to you? Is it the legal equivalent of "Turn on,
Tune in and Drop out" ? :))
Eric: So, members can retain their 100% interest in
their creations, or they can place their creations
into the 'pot'. The former is probably preferable, but
again, both are justifiable.
Alain: Why is this an either/or proposition? Members
retain their 100% interest in their creations so that
they can do what they wish with them without
consulting us and/or asking for our permission. These
contributing members licence their creations to our
Partnership, for an indefinite period of time
(forever), without any licencing restrictions
whatsoever, and that this licence cannot de
re-negotiated or revoked.
Eric: The advantage of each partner keeping their
rights is the following: they won't feel ripped off.
Alain: And they can do what they wish with the fruits
of their labour. A right that they don't forsake by
sharing it with our group.
Eric: The advantage of making their creations
partnership property is the following: the partnership
can now dispose of the property as it sees fit.
Alain: Yes, this is absolutely necessary. We cannot
accept contributions that we would build upon that
could later on be retracted arbitrarily by its
contributor. A gift is a gift, eh!
Eric: The disadvantage of making creations partnership
property is that the property cannot be sold
(remember, no commercial purposes to limit liability)
at least not without a unanimous agreement of
partners.
Alain: That's ok. We are open source. Our wares are
not for sale. They are made available to everyone, for
free. The sale of OpenKard would indeed require
unanimity because it goes against everything this
partnership supposedly stands for.
Eric: I would recommend reserving this decision until
after the partnership is formed.
Alain: The property issue (e.g. who is the Copyright
Holder) is a licencing issue but it is so fundamental
that I wonder if we shouldn't discuss it now, at the
same time as the Partnership.
Eric: It .. would involve a dramatic change in the
right of each creator over the thing that s/he
creates.
Alain: Not with my proposed approach. Each creator
keeps his rights, but all his contributions are
unconditional gifts.
Eric: It could be included in the agreement itself,
but ... my instinctive reaction says, keep it simple
...
Alain: My proposed approach is the kind of arrangement
that we need to reassure creators that they are not
relinquishing their rights by sharing the fruits of
their labours with us, and for us to insure the
developmental stability that we need. So important, in
fact, that I feel we should include it in the
partnership agreement.
Eric: ... and leave ultimate ownership of the creation
in the hands of the creator.
Alain: For individual contributions made by them, yes.
Work accomplished collectively would be owned by the
Copyright Holder of OpenKard (everyone). Yes, despite
the fact that programming is somewhat of a personal
activity, many elements (and global things too) will
be a hodge-podge mix of many contributions, made by
many contributors, over time, with varying degrees of
value (usefulness) that are hard to evaluate
objectively for each contribution.
Eric: There are more legal issues, and i have lots of
mail today, so i will write further on this. Hope this
helps.
Alain: Not all from me, I hope ! ;-)
=====
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