Re: Review of Agreement for Samvera to sign

Dear Heather:  We hope to be able to facilitate this quickly for you, but I do need to pose two questions first.  You're welcome to share this message with UI and with your Board if you wish.
Subject to those two matters, we'll be happy to get this signed for Samvera;  As a legal entity contract, as you know, it requires an  OODF  officer's signature.  (Thus my sharing this with Scott, who usually fills that role.)
( 1 )  Please advise S c ott tha t  the $40,000 planned expense and  part time assistance  of the  IU  develop er
has been appro ved
b y your board of directors .  (That could also have occurred by
intentional inclusion in your approved foundation budget . )
(2)  The one possible show-stopper is the indemnification clause in UI's draft paragraph 11, which is unusual for open source development.  Under it, Samvera would give an  unlimited indemnity  to UI for hypothetical third party claims of infringement or otherwise.  That might be appropriate to ask commercial software production developers in some cases, but it poses several problems in an open source context:
It's atypical in open source work  because  those kinds of chain of title and liability issues are intended to be addressed by the "AS IS" terms, and exculpation of the offerer of the work from any such liability, in Sections 7 and 8 of the Apache 2 License (  https://www.apache.org/licenses/LICENSE-2.0  ).  Is it possible that UI's team reviewer is more familiar with commercial than open source licenses?  In the latter, the right of every user to use, implement and derive from the licensed work is  conditioned  upon the exculpatory terms in that license.
Any work by UI  under  UI's draft  agreement  is to be  contributed to the project  and  subject
to Apache 2 terms, which will give UI the direct benefit of those exculpations, as the contributor.  So there should be no practical exposure to UI for donating the new code increments.  (Arguably UI's draft paragraph 12
in part duplicat es that  protection, but I see no harm in that.)
Prior work  in the Hyrax project also was donated under Apache 2 terms (  https://github.com/samvera/hyrax/blob/main/LICENSE  ), which as a practical matter should rule out such liability for claims.  Realistically,  new  code will come  from  UI, who wishes to retain title and principal credit (per UI's draft paragraph 9, which is fine.)
Any errant, unexpected or troll claim made against any new, old or aggregate work would be completely outside Samvera's control -- the Samvera community and foundation did not give rise to the risk.  Both Samvera and UI likely are better off relying on the standardized, well-understood "as-is, where-is" clauses, than some uniquely drafted risk arrangement.  It also strikes me that,  though  you would know better than us, this seems likely to be is a low-risk, non-fractious IPR domain, with no expected infringement risks on the horizon.
In any case, Samvera is a limited-size, nonprofit entity not really in the position to give unlimited indemnities to anyone.
W e're happy to talk further with the UI folks about these issues, if that would be helpful, but we do not recommend agreeing to the current draft
draft section 12.
B est regards,  Jamie Clark
James Bryce Clark  General Counsel
OASIS Open

Xing
LinkedIn
Twitter
Setting the standard for open collaboration .
Hi Jamie and Carol,
We are signing an agreement with Indiana University to reimburse them for important community work one of their employees will do for 1/3 of their time for the next year. Could you take a look at the agreement? We'd like to sign before the July 4 holiday if possible.
Thank you!
Heather

-----

Heather Greer Klein (she/her/hers)

Samvera Community Manager
Schedule time with me

https://samvera.org/
Working from Durham, NC (US Eastern Time Zone), on land traditionally cared for by the Shakori and Eno peoples.