Leenaars, M.A.G.J.; Šuklje, M.
The Commons Conservancy
This document is part of the DRACC series, see DRACC "Introduction to DRACC Series" for an explanation. You can reuse it under a "Creative Commons Attribution 4.0 International" license.
When a Programme within [The Commons Conservancy] notices a breach of its copyright, violation of its licenses or other violation of its rights, in some cases it MAY decide to act in court. [The Commons Conservancy] is not a suitable environment for litigation. The foundation has no concept of money, and serves to give away technology for free for the public benefit. In case financial damages are awarded, [The Commons Conservancy] would not able to directly receive this money. There are no internal financial means for legal representation, nor for covering possible damages or other direct or indirect costs. Also, [The Commons Conservancy] actively tries to be as non-contentious as possible, to prevent any unnecessary risks.
There are alternative ways to act upon these needs of a Programme in such a situation. This document serves to clarify the possibilities and to manage expectations.
The primary mechanism offered to any Programme considering to take legal action is Graduation (see DRACC "Graduation"). Assuming that such is allowed by its own statutes and regulations, a Programme MAY at any point in time request to leave [The Commons Conservancy]. Such a new organisation would operate independent from [The Commons Conservancy]. Once it has moved into a standalone organisation or joined another organisation, only its own statutes and regulations limit its freedom to act in any way it deems necessary -- which includes the right to settle disputes in court.
Should a Graduated Project wish to re-join [The Commons Conservancy], the Board of [The Commons Conservancy] SHALL decide whether and under which conditions to accept it.
Isolated legal entity
In a situation where Graduation is not possible or reasonably desirable, and the public interest demands legal action, a Programme (or set of Programmes) MAY formally request the Board of [The Commons Conservancy] to temporarily transfer some assets to an isolated legal entity created especially for the purpose of litigation. A Programme (or set of Programmes) will do so in the knowledge that it may lose the court case and thus risks paying for damages and legal fees or even sustain the loss of assets involved if it would be unable to pay the damages awarded to the other party.
Prior to approving the transfer of the first assets to an isolated legal entity, The Board of [The Commons Conservancy] SHALL organise a Public Consultation, as defined in DRACC "Public Consultation". If there are no reasonable objections or risks deemed unacceptable by the Board of [The Commons Conservancy], and the Board deems it likely that the Programme will be able to allocate adequate means to pursue the litigation and pay for possible damages, the Board SHALL either approve the transfer of assets to the isolated legal entity or arrange for another workable solution, such as a Graduation procedure.
The Programme will have to gather the required budget for creating the isolated legal entity itself, as well as the budget for the whole legal procedure and preferably a reservation for potential damages if the outcome is not favorable. The Programme or Programmes SHALL clearly indicate which specific assets are needed for litigation, and why -- the fewer assets at risk, the better.
The isolated legal entity MUST sign a binding contract with [The Commons Conservancy] which makes it impossible to transfer, relicense or sublicense any part of the assets it is entrusted with to others without explicit formal permission from the Board of [The Commons Conservancy] and from the Programme(s) involved. Directly upon transfer of assets to the isolated legal entity, [The Commons Conservancy] SHALL receive a worldwide, no-charge, royalty-free, non-exclusive, perpetual and irrevocable BSD 2-clause "Simplified" License (SPDX short identifier: BSD-2-Clause) and unlimited global license to use, sublicense and relicense these assets in return. At the same time [The Commons Conservancy] SHALL also receive a worldwide, no-charge, royalty-free, non-exclusive, perpetual and irrevocable patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer any and all patents that were transferred to the isolated legal entity. [The Commons Conservancy] SHALL use these licenses to continue to provision its Programmes with regular FOSS licensing for the technology they develop until such time when all assets are successfully returned. The isolated legal entity SHALL pay for the proper maintenance and renewal costs of assets such as domain names and trade marks during its custodianship, so that these can be returned in a complete state.
Upon finalisation or termination of the legal proceedings, or upon violation of the Memorandum of Understanding, all assets SHALL be returned immediately to [The Commons Conservancy] and the isolated legal entity closed. In case the isolated legal entity is fined for damages, and its assets are collateral security, [The Commons Conservancy] MUST be contractually granted the first right to select and approve the buyer of any assets and to find a buyer to match any price.
Use of the Legal Document Whitelist
The above assumes that rights involved have been properly vested within [The Commons Conservancy]. [The Commons Conservancy] maintains a list of mature legal documents which it expects can be relied on in such a scenario (see DRACC "Legal Document Whitelist"). A Programme is expected to have all assets it wishes to protect, identified and assigned to [The Commons Conservancy].