Dear friends,
As stated many times in previous messages, here is a first legal analysis. My
personal opinion is that the wxAssignment contract is both completely and
partly void.
This is only the opinion of someone with an MBA and four years of legal
studies. This information needs to be verified by a professional lawyer. My
daily work is programming and business. Not always defending liberty.
Also, keep in mind that I am only a wx user, not part of the hundreds of
people who developed the framework during 10 years or more. In a way, I do
not pretend to be Mickey Mouse from the FooBar Company.
Now, could someone provide me some hosting for this information? Possibly,
Dave, could my personal space of pgAdmin3 project host my opinion if I
display the following message:
"Welcome to the homepage of Jean-Michel Pouré. The pgAdmin project does not
endorse the information displayed here. For pgAdmin, visit..."
The advantage is that it will allow people answering without filling the wx
list. Everyone needs to express its opinion, even people in favour of the
wxFoundation.
I will later publish a detailed howto explaining how to push the "Cancel"
button without a risk.
Feel free to be(come) democrats!
Best regards,
Jean-michel Pouré
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In the following document, I only study the Assignment validity because this
is the most urgent issue to deal with.
A) Binding laws of the http://www.wxwindows.org/sf/wxassignment08.pdf
contract.
A1) Nationality of the wxWindows Foundation: UNCLEAR
The wxassignment08.pdf contract, later called "assignment", does not define
explicitly the location of the contract using a sentence comparable to: "The
contract is subject to the laws of [a_country]. In case of legal dispute, the
legal dispute shall be cast in front of the court of [Country, State and
place of residence of ...]. etc..."
The contract gives only information about the place of residence of the Open
Source Applications Foundation, which is located in the State of California,
as stated on page three of the Assignment:
co/ Open Source Applications Foundation
San Francisco, CA, U-S-A
There is no doubt that the "Open Source Applications Foundation" is an
organization of American nationality. On the converse, the contracts bears no
sign indicating the nationality of the wxWindows Foundation. The contract
does not bear any clear registry number which could identify the wxWindows
Foundation.
The address can be:
wxWindows Foundation
c/o Open Source Applications Foundation
San Francisco, CA, U-S-A
or
Erin Decker
Open Source Applications Foundation
San Francisco, CA, U-S-A
or both
Erin Decker
wxWindows Foundation and Open Source Applications Foundation
at the same address of...
San Francisco, CA, U-S-A
We can only read an English name "wxWindows Foundation c/of ...". The "care
of" letters can apply to Erin Decker as well as the wxWindows foundation,
there is no clear and explicit evidence about the nationality of the
"wxWindows Foundation". In fact, for a non-native speaker, the wxWindows
foundation can be of any nationality.
In the later case, Erin Decker would be the legal representative of the
Foundation in the United-States, but the Foundation itself could well be
French or German.
Again, there is no clear evidence.
A2) Nationality of the developer: CLEAR
On page one of the Assignment, the "Country field" is important, because it is
the only sign which can be analyzed to guess nationality of the developer
"transferring" rights. For a lawyer, the Country field can be understood as
the place of usual residence of the developer.
A3) Nationality of contract: CLEAR, EVEN IN THE WORST CASE SCENARIOS
To summarize, we have the following information:
- The nationality of the wxWindows Foundation is unclear. It may be any
nationality. There is no clear evidence.
- The developer country of residence is the field 'Country'.
To solve this problem, which happens quite usually in contracts, the judge
will ask himself the following question:
A3a) Are the binding laws of both parties the same? Are they both clear?
The clearest nationality wins. In this case, the binding laws are the laws
from the country of the developer.
A3b) If this is still unclear, the judge will study different elements in
order to define which laws apply.
Now, let us assume that such a question be asked... the judge will only try to
make very simple judgements. In commercial law, any evidence can be used by
the judge, who will try to guess in his own mind. In my opinion, the judge
will ask himself the "worst scenario" questions, like:
"What if a Company or a Foundation incorporated in Siberia visits my family in
France, indicates clearly that the organisation is of Siberian nationality
and says: look, I propose you a good deal. Give me the property of the house
you built with you own hands and with the help of friends and I will give you
back the right to use your house and live in the house forever. This is a
good deal because you need protection in Siberia."
If for some reason, I accept the deal, we can argue that the seller came at my
door, rang the bell of the Internet, entered the room and asked me to sign.
Even, if for some reasons, I was aware of the Siberian nationality of the
company, the assignment itself could only be of French nationality. If I go
to IKEA and buy or sell furniture, the contract is of French nationality, not
Swedish.
Because I signed the contract home and because I am an individual protected by
Constitutional Riggs, I could only guess that the contract was of my
nationality. Unless explicit warning, it was not possible to guess the
nationality of the contract.
Clearly, this is why so many people signed it. Anyway, because we have an
individual in front of a company, the judge will choose to protect the
individual. There is stung evidence that the contract is of the nationality
of the developer.
A4) Applying laws
Now that we know that the contract is of the developer nationality, we need to
study where the laws apply. This is not absolutely needed in our case, but
let us go for it. The situation is quite simple, we can see four cases:
- From the Siberia point of view: the salesman buying for nothing will be able
to register the "transfer contract" in Siberia and claim it is of "Siberian
Cold" (Here I am making humour). At a first glance, a judge may think the
contract is of Siberian nationality. But, after a few seconds of discussion
in front of the judge, the people involved in 10 years of hard work can claim
easily that the contract is not of Siberian Nationality and Cold, because it
was signed in a distant country called 'France' by someone who rang at the
door. In case of an "hypothetical dispute" (which cannot happen because all w
members are friends), someone from the wxWindows team will need to show up
and explain the context to the judge.
- In France: because the contract was signed in my house, with no evidence of
the nationality of the wxWindows Foundation, there is strong evidence that
only French laws apply. If for some insane reason there is a doubt, in some
"worst case scenario", the judge will consider the best law system in the
interest of the individual, because the developer is of French Nationality.
After a few seconds of comparison between the French and the American laws on
intellectual property, the judge will choose the French system, i.e. the
French law. There is no need to show up in front a judge. Only a simple
letter suffices.
- In any other country of the European Union (ex: Germany): the contract
signed by a French developer will be inapplicable because none of the parties
is of German nationality. If for some reason, someone claims to apply the
contract, the contract may be considered European in the first place but it
will not apply for the same reasons as in Siberia. Someone will need to show
up and explain how hard people worked during 10 years.
- In any other countries (ex: China): the contract will be considered as of
International law. After discussion by the judge, it is 99,99% likely that
the judge will declare himself not able to find a solution. The case will
simply be dropped sending everybody back home in France and Siberia.
A5) Summary: ONLY THE NATIONAL LAW OF THE DEVELOPER APPLIES
In my humble opinion, both based on reality and "worst case scenarios", the
laws of the developer usual place of residence apply.
i.e. the field 'Country'.
B) Consequences of the French laws upon liability
Now that we know that the applying law is the country of residence of the
developer (i.e Country field), I can only speak about the laws which I know
the best, the French ones, with detailed references. Of course, there are as
many cases as different legal systems in Europe. Because only the laws of the
developer apply.
First, we must bear in mind that the equivalent of the American Foundation
does not exist in France. The French law has both "Association loi 1901" and
"Foundation" legal organisations. The main difference with the American
system is that in France, the President of the Association loi 1901 or the
Foundation (both later called "Asso") are liable on their personal assets.
In France, this is a reason why running a commercial activity under "Asso"
laws is quite difficult. It was done in the past, for example in the cases of
"Club Méditerannée" or "La Fnac" ASSO. In case of legal dispute, only the
President is responsible on his own assets, only if the Asso does not have
enough money to pay.
The members of the board are not liable of course. Only the President.
Now, let us assume, in the worst case scenario, that a number of developers
claim ownership and win the payment of 1.000 euros a day for the free time
spent on wxWindows collaboration before it was 'transfered' to the ASSO. Or
nasty developers do not agree that some members of the Asso win 20.000 euros
and not them. It can be anything, I am just trying to guess, nothing 'real'
at the moment.
If the Asso cannot pay and the President of the Asso cannot pay, the judge
will use the principles of "economical transparency" to find the real
President of the Asso. If it is proven that the Asso does not exist in
reality, but is only a subsidiary of a company, then the Asso can be
transformed by the judge into a limited company. Then, the mother company
will have to pay, i.e. a commercial company.
In the worst case scenario, the ASSO is not a good solution. In France, you
have to choose where you are playing more clearly than in the U.S. - in the
ASSO field or in the business field. Otherwise, it can have dramatic
consequences.
Now, I will study the power of the assignment by law.
C) COMPLETE invalidity of the assignment
Complete invalidity means that in any cases, the whole contract is void, not
only part of it. The contract is considered to exist, but it cannot be used
in court by anyone. For the following reasons:
C1) Absence de cause ("Absence of real need").
Art 1131 of the Civil Code
"L'obligation sans cause ou sur une fausse cause, ou sur une cause illicite,
ne peut avoir aucun effet."
=An obligation without real need or a false need or an illegal need, has no
binding by the law.
In short, if some Siberian lawyer visits your family and says 'give me your
house because it will protect you in Siberia. You will still be able to live
in your house for free" and you accept the deal, the deal is invalid.
This renders the whole Assignment completely invalid.
C2) Future contract ("Contrats futurs")
Art 1130 of the Civil Code
"Les choses futures peuvent être l'objet d'une obligation"
= Future obligations cannot be dealt by contract.
This article was used many times against slavery. You cannot make transfer all
of your future work forever, without knowing perfectly the nature, the price,
etc... of your future work. Because the wxWindows future needs to be
written, some individual cannot give away all his future work for free.
This renders the whole Assignment completely invalid.
I also know at least two COMPLETE invalidity reasons, but do not wish to
publish them, as I may be wrong and need to verify the law with my lawyers.
D) RELATIVE invalidity of the assignment
These criteria render the assignment partly invalid. Upon decision of the
judge, the deal may be completely invalid. It depends on the judgement of the
court, which can only be guessed, but not completely. Also, only part of the
contract may be invalid (the articles involved).
D1) The deal does not display the registration number of the ASSO.
Any contract between an individual and a legal entity must display
registration numbers.
D2) At the date of the deal, the ASSO may have existed only as a written
contract. It may have well been registered (the member of the boards received
a registration number for the State of California) later on. This is a very
hypothetical issue. According to Julian, this is not the case today. Maybe it
was the case a week ago.
D3) The contract is a one way contract because the president of the Foundation
does not sign it. At the end of the contract, you can read "Instructions .."
and the phone number where it can be faxed. But only the developer signs it.
Therefore, because you are an individual and it is a one way contract, by law,
the contract needs more than a signature, a date, a printed name, a
contributor name and the list of contributions. Because of the importance of
the contract, it requires that the most important parts of the contract be
written by hand.
D4) Sending the contract by fax has no legal power in France with individuals.
Only between companies. It is only considered as a beginning of a proof, not
a complete proof. The proof shall not be made by the Foundation, but by the
individual. There needs to be some sort of receipt sent by postal mail by the
Foundation.
*************************************************************
Now, for the sake of the Community, it is better to stop the analysis here.
You can now sleep well and be sure that the assignment that you signed to
"transfer your rights" to "Siberia" is both COMPLETELY invalid (C) and PARTLY
invalid (D).
From today, there needs to be some sort of Democratic process to:
- immediately confirm the invalidity of contracts publicly and cancel them as
a whole.
- set up the regulatory laws of the community, if there is a need for common
laws (I don't believe so),
- transfer part of the Intellectual property Riggs, if there is a need (I
don't believe so).
- ask legal advice to European lawyers in each country of the European Union.
- avoid signing any contract in the United-States when you are not of American
nationality.
This will not change the fact that Borland is highly interested in the skills
of wxWindows brilliant developers and will pay for them. In a way, the main
wxWindows developers are not customers, they are providers. Borland is the
customer and will pay for services. All this happened because the lawyers
from Borland do not know anything about the European laws and probably never
travelled outside of their village.
Of course, I did not study the problem of patents, because it is a secondary
problems and because the patents on software will disappear in the
United-States when new political forces come in power. If you want to be sure
of it, visit http://www.stallman.org.
Best regards
Jean-Michel Pouré
