Worst Case Scenarios - SPI and Lawsuits

Rourk, Chris crourk at AKINGUMP.COM
Fri Jan 11 14:08:40 UTC 2002

I'm not sure what brought up the talk of bankruptcy, but in bankruptcy, the bankruptcy trustee would sell the assets of the bankrupt organization to pay off the debtors of the organization.  Does SPI have any debtors?  If SPI is sued and goes bankrupt in paying off the judgement, perhaps a debtor could exist, but otherwise, I can't see where a debtor could come from.

As far as I know, SPI has no patents.

Copyrights don't really exist for code that has been released as open source, although that is more from the decision of the owner of the copyright not to enforce it than from a legal status.  However, if code is released as open source, then it would probably be very difficult for the owner to go back and "reclaim" the right to enforce the copyright.  I can do some research on this, but I think it is unlikely that this would happen because of the difficulty of identifying who owns the
copyright if many people have contributed to the code.

Trademarks are a different story, but they must be transferred with the "goodwill" in order for the transfer or acquisition to be effective.  It seems like the goodwill associated with the trademarks of a non-profit would be difficult to transfer to a for-profit entity, but again, I think there is a better strategy - declare that all trademarks used by SPI lack distinctiveness, and treat them that way.  If a mark is descriptive (e.g. "GREAT BURGERS" for hamburgers) or generic (e.g. "HAMBURGERS"
for hamburgers), then NOBODY can get rights in the mark (although in the case of a descriptive mark, 5 years of exclusive use can provide the mark with distinctiveness, which equates to a legally enforceable trademark).  A mark like DEBIAN can be generic, though - ASPIRIN used to be a mark owned by Bayer for acetylsalicylic acid, but they let it become the generic term for that compound.  Now, nobody has trademark rights to ASPIRIN.

Domains, of course, can be owned.  The simple fix for this is to create a non-profit transfer SPI's domains to them, and then license the use of SPI's domain names back to SPI.  

> -----Original Message-----
> From: Branden Robinson / SPI Treasurer
> [mailto:branden+spi-treasurer at deadbeast.net]
> Sent: Thursday, January 10, 2002 11:11 PM
> To: Brian Ristuccia
> Cc: Andrew Hagen; spi-general at lists2.spi-inc.org;
> spi-board at lists.spi-inc.org
> Subject: Re: Worst Case Scenarios - SPI and Lawsuits
> On Wed, Dec 12, 2001 at 01:38:33AM -0500, Brian Ristuccia wrote:
> > We should really revisit this thread at some point. As far 
> as I can tell, no
> > steps have been taken yet to reduce the risk of 
> reassignment of SPI's
> > copyrights, patents, trademarks, domains to a hostile 3rd 
> party in the event
> > of bankrupcy.
> You guys should talk to Chris Rourk about this.  He is SPI's attorney.
> Please carry out your discussion via board at spi-inc.org so 
> that the Board
> can see it.
> -- 
> G. Branden Robinson                |     It's not a matter of 
> alienating
> Debian GNU/Linux                   |     authors.  They have 
> every right to
> branden at deadbeast.net              |     license their 
> software however we
> http://www.deadbeast.net/~branden/ |     like.  -- Craig Sanders

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