Re: [gentoo-project] Formally have Council oversee the Foundation 2.0

[Rich Freeman <rich0@gentoo.org>]

On Mon, Jan 16, 2017 at 1:52 PM, Alec Warner <antarus@gentoo.org> wrote:
>
>
> SPI reduces the liability of the Gentoo Foundation (since the board and
> officers have specific legal duties that get taken over by SPI.)

SPI eliminates the liability of the Gentoo Foundation, because under
that model there wouldn't be a Gentoo Foundation.  It wouldn't have a
board or officers, since it wouldn't exist.

> I don't
> think the SPI changes the liability of the foundation members (who do not
> receive indemnification either way) or non-members.

There would be no members, since there would be no Foundation.

Foundation members in general are not liable for the actions of the
Foundation, just as shareholders in any corporation are generally not
liable for the actions of a corporation.  (There are exceptions, but
they're not going to apply here.)

Now, somebody who happens to be a foundation member might be liable if
they happen to also personally do something that exposes them to
liability.  If I own a share of Exon-Mobil stock and an employee of
Exon-Mobil hits somebody over the head with a gas can then I bear no
liability because of this association with the corporation.  However,
if I were to hit somebody over the head with a gas can then of course
I'd be liable for it.  Being a Foundation member neither increases nor
decreases your liability as far as Gentoo is concerned.

Now, being a Trustee or Officer is a different matter.

> So saying "there is no
> Gentoo to sue" to me is disingenuous. For most people on this thread the
> situation is the same; the board and officers encompass only 5 humans.

So, we have to pick which way we're going with things.

Are we of the school that:
There is only one "Gentoo" and it is the Gentoo Foundation, and
everything else is just a legal fiction, and the Foundation is
responsible and in charge of everything as far as the law is
concerned.

or not?

Part of the problem here is that we're using terms loosely, which is
made more complicated by the fact that we're talking about something
that would change the nature of those terms anyway.  Gentoo today is
legally a Foundation that owns the trademark on "Gentoo."  Under the
proposal "Gentoo" would be nothing more than a trademark owned by SPI.
You can't sue a trademark, only its owner.

Yes, devs could be sued if they personally did something wrong.  That
is true today, it has always been true, and it will always be true.
At best we could pay for insurance to pay for the legal bills and
judgments should such a lawsuit happen.  We don't do that today.

However, what we personally do is something we can all control.  You
can sue me for things I do wrong.  You can't sue me for things others
do wrong.  That isn't the same as the situation today, where I as a
developer can do something wrong, and the Foundation could be sued for
it, and now the Trustees have to deal with it, and if they fail to
discharge their duties as Trustees properly they could also be sued.

-- 
Rich