Posts Tagged with “legal”
September 17th, 2008
September 16th, 2008
We’re still working on this. There’s been a bunch of helpful feedback. We appreciate this. We think we’ve integrated the feedback into something that’s a good solution; different from out last version in both its essence and its presentation and content.
We’ve come to understand that anything EULA-like is disturbing, even if the content is FLOSS based. So we’re eliminating that. We still feel that something about the web services integrated into the browser is needed; these services can be turned off and not interrupt the flow of using the browser. We also want to tell
people about the FLOSS license — as a notice, not as as EULA or use restriction. Again, this won’t block the flow or provide the unwelcoming feeling that one comment to my previous post described so eloquently.
We expect to have the materials that show this plan posted tomorrow morning.
Along with the feedback, there have also been some responses that go beyond anger to nasty, personal attacks. This is unfortunate. I think we’ve gotten past the vitriol to absorb the underlying issues. It’s possible that we’ve missed something. Sometimes the vitriol masks what would otherwise be a point we might understand and agree with. If that’s the case, we’ll keep working on things. The end result will be better for all of us.
September 15th, 2008
Ubuntu recently included a patch that causes an End User License Agreement for Firefox to appear. This has caused great concern on several topics. One is the content of the agreement. Another is the presentation. A third is whether there’s any reason for a license at all.
The most important thing here is to acknowledge that yes, the content of the license agreement is wrong. The correct content is clear that the code is governed by FLOSS licenses, not the typical end user license agreement language that is in the current version. We created a license that points to the FLOSS licenses, but we’ve made a giant error in not getting this to Ubuntu, other distributors, and posted publicly for review. We’ll correct this asap.
Second, the way the license is presented to people also has issues. I think the presentation might not be so bad if we had the correct content there, so that it said the software is governed by the FLOSS licenses that are so important to us. But even then the presentation may have issues. We’re certainly trying to figure this out. We’ll do this with public input; you’ll see posts about this shortly as well.
There’s a third question of services, and whether the FLOSS license for the code can include the services one accesses. We think this isn’t true all the time, and the license will reflect that. The code is governed by FLOSS licenses, and we should have been clear about that.
This leaves the question of whether it ever makes sense to show people the terms that relate to the software and services available to them. I saw some comments asking why one ever needs any terms. Again, if we had the correct content I think this would be less of an issue because then we would be telling people about FLOSS licenses. We (meaning Mozilla) have shot ourselves in the foot here given the old, wrong content. So I hope we can have a discussion on this point, but I doubt we’ll have a good one until we fix the other problems.
We take this very seriously and are working hard to fix it.
Update: text of the revised license is online.
November 5th, 2007
I’m often asked various questions about non-profits. Many people have a general idea of what “non-profit” means but very few have a specific, technical understanding. This makes perfect sense. The technical understanding is a legal and accounting mix, and specific to legal jurisdiction as well.
Here’s a brief outline of what “non-profit” means — in the technical, legal sense — to the Mozilla Foundation. It’s pretty dense stuff, and I’ll provide only the most basic summary. I think about this a lot but in this post I’ll try to stick to describing the structure.
I. “Non-profit” status
The Mozilla Foundation is legally identified as a “non-profit public benefit” organization under California law. Its property is “irrevocably dedicated to charitable purposes.” The Mozilla Foundation is governed by the California Nonprofit Corporation Law, which is somewhat different from California’s General Corporations Code. I’ve found that the distinctions between the general Corporations Law and the Nonprofit Corporation Law include structural elements — members instead of shareholders and so on, and a set of distinctions which I think of as designed to ensure that the organization is pursuing a non-profit goal rather than pursuing private gain.
II. “Tax-exempt” status
The Mozilla Foundation is also a tax-exempt organization as determined by the U.S. Internal Revenue Service. To be a tax-exempt organization one should be a non-profit organization (as described above), and the purpose of the organization must fit within additional specifications. Once this status is granted, a tax-exempt organizations is governed by a body of regulations and policies determined by the IRS. These regulations are in addition to any requirements imposed by the Nonprofit Corporation Law. These regulations identify permissible purposes for a tax-exempt organization. They also limit the kinds of activities in which a tax exempt organization can engage, especially for activities that generate revenue or that involve advocating for particular laws. In exchange for tax-exempt status, an organization lives with significantly more restrictions on the way it can operate.
III. “501(c)(3)” status
The Internal Revenue Service grants tax-exempt status to several different kinds of organizations. The Section of the Internal Revenue Code that describes the types of exemptions is Section 501. The most important one for our purposes is Section 501(c)(3). This section applies to organizations “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . . or for the prevention of cruelty to children or animals . . .”
The Mozilla Foundation is a 501(c)(3) tax-exempt organization dedicated to promoting the Internet as a universal, innovative platform accessible to all.
IV. “Public Charity” status
There are actually two types of 501(c)(3) organizations. One type receives significant contributions from the public — a “public charity” 501(c)(3). The other type is a “private foundation.” These are generally 501(c)(3) organizations where an individual or family contributes most or all of the money and the charity operates from these funds and the income they generate. Private foundations are required to spend a certain percentage of their funds each year, public charities are not. (There are also two types of private foundations, operating and non-operating.) The IRS reviews 501(c)(3) organizations periodically to see if they are public charities or private foundations. The Mozilla Foundation is currently a public charity 501(c)(3) organization.
For Further Detail
Each of these areas can become complex quickly. This is an area where it takes true experts to fully understand. Wikipedia has a nice overview article. The actual documents relating to the Mozilla Foundation can be found at the Mozilla Foundation website.
After living in this world for the last few years I have many thoughts about where this system works well and where it is unwieldy or even counter-productive. I’ll put those in a separate post before too long.
October 31st, 2007
I’m often asked various questions about non-profits. It seems many people have a general idea of what “non-profit” means but very few have a specific, technical understanding. This makes perfect sense. he technical understanding is a legal and accounting mix, and specific to legal jurisdiction as well.
So here’s a brief outline of what “non-profit” means — techncially — to the Mozilla Foundation. It’s pretty dense stuff, and I’ll provide only the most basic summary.
I. “Non-profit” status
The Mozilla Foundation is incorporated as a “non-profit public benefit” corporation under California law. (So yes, even a non-profit “foundation” is a “corporation.” In this sense “corporation” means a form that is recognized as having a legal existence.) Its property is dedicated to charitable purposes. It also means that the Mozilla Foundation is governed by the California Nonprofit Corporation Law, which is different from California’s General Corporations Code. I’ve found that the distinctions between the general Corporations Law and the Nonprofit Corporation Law include structural elements — members instead of shareholders and so on, and a set of distinctions which I think of as designed to ensure that the organization is pursuing a non-profit goal rather than pursuing private gain.
For example, the Articles of Incorporation of the Mozilla Foundation (and other non-profit corporations) provide that:
“This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person . . . The specific purpose of the Corporation is to promote the development of, public access to and adoption of the open source Mozilla web browsing and Internet application software.”
II. “Tax-exempt” status
The Mozilla Foundation is also a tax-exempt organization as determined by the U.S. Internal Revenue Service. To be a tax-exempt organization one needs to show that one is incorporated as a non-profit organization (see Section 1 above), and that the purpose of the organization fits within additional specifications. Once this status is granted, a tax-exempt organizations is governed by a body of regulations and policies promulgated by the IRS. These regulations are in addition to any requirements imposed by the Nonprofit Corporation Law. These regulations relate both the purpose of the tax-exempt organization and also require that the organization’s actions be in furtherance of the tax-exempt purpose. They also limit the kinds of activities in which a tax exempt organization can engage, particularly activities that generate revenue. To help me understand this, I think of this as a trading general flexibility of action by the organization in exchange for tax-exempt status.
The Mozilla Foundation’s tax exemption determination letter can be found on the Foundation’s website.
III. “501(c)(3)” status
The Internal Revenue Service grants tax-exempt status to several different kinds of organizations.
More specifically, the Mozilla Foundation is a “501 ( c) (3) corporation.” The “501” here stands for the section number of the U.S. tax code that defines tax-exempt organizations. Section 501(c ) (3) allows tax exempt status for an organization that is ” . . . organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes . . .” You can find the text of Section 503 of the US tax code here: http://www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00000501—-000-.html
Before I was involved with the Mozilla Foundation, I thought that the definition of a 501(c )(3) corporation covered most of what one needs to know. It turns out that are two quite different kinds of 501(c )(3) corporations. There are “private foundations” and there are “public benefit” charities. Each type is subject to different regulations. Here’s a description of the differences written in generally understandable language.
The Mozilla Foundation is a public benefit charity. In addition, the Mozilla Foundation is a tax-exempt organization as determined by the State of California.
2. Mozilla Foundation and Mozilla Corporation.
It’s hard to find documents in this area that are relatively easily understood. I am including an excerpt from a document at the IRS site that is a useful starting point. It describes how the tax-exempt parent and the taxable subsidiary must act separately, and not as one. The document, known as ectopic86 (written for a training seminar in 1986) says this about the activities of a tax-exempt parent and a taxable entity:
“1. Introduction. Taxable for-profit subsidiaries of organizations exempt under IRC 501(c) are not a new phenomenon. The formation of such organizations, however, has increased markedly in recent years.”
It goes on to state:
“A parent’s exempt status may be jeopardized if the commercial activities of its subsidiary can be considered to be, in fact, activities of the parent . . . . That is, where a corporation is organized with the bona fide intention that it will have some real and substantial business function, its existence may not generally be disregarded for tax purposes. Britt, 431 F.2d at 234. However, where the parent corporation so controls the affairs of the subsidiary that it is merely an instrumentality of the parent, the corporate entity of the subsidiary may be disregarded. (See IRC 482; see also 1 W. Fletcher, Cyclopedia of the Law of Private Corporations Section 43.10 (Perm. Ed. 1983).)
B. Application of Principles Whether the activities of a separately incorporated taxable subsidiary may be attributed to its parent is, therefore, a question of evidence. Basically, once it is established that a taxable subsidiary was formed for a valid business purpose, the activities of such a subsidiary cannot be attributed to its parent unless the facts provide clear and convincing evidence that the subsidiary is in reality an arm, agent, or integral part of the parent. This presents a considerable evidentiary burden that is not easily overcome. Clear and convincing evidence of the subsidiary’s lack of separate existence could be produced, however, in situations where the parent is involved in the day-to-day management of the subsidiary, where the subsidiary’s Board of Directors has no independence of action, or where transactions between the two entities are conducted on a basis that is otherwise than at arm’s length. (Transactions between parent and subsidiary should be scrutinized carefully from another point of view: the possibility of inurement always exists, and a parent-subsidiary relationship cannot function as a shield against the assertion of inurement.)”
You can find the full document the IRS website.
February 6th, 2007
The Mozilla Corporation is looking for a General Counsel to join its executive staff. The Mozilla Corporation is focused on creating great software and maintaining choice and innovation in key Internet activities, such as the highly acclaimed Mozilla Firefox and Mozilla Thunderbird applications. The Mozilla Corporation is a wholly-owned subsidiary of the Mozilla Foundation, a non-profit organization dedicated to promoting choice and innovation on the Internet.
The Mozilla Corporation
The Mozilla Corporation is at the heart of one of the largest open-source software development projects in existence. It includes a userbase of 70,000,000 people, paid and volunteer contributors numbering in the thousands, a range of spin-off projects, and a set of companies using Mozilla technology to build products. The Mozilla Corporation is also at the heart of the burgeoning innovation in web-based activities.
Mozilla Corporation employees work within a unique structure that combines open source DNA and development methodologies with extensive commercial involvement. Successful Mozilla Corporation employees are quick learners, excited by change, unbothered by ambiguity, motivated by personal excellence, happy when doing many things and highly dedicated to the success of the project.
The General Counsel
The General Counsel will provide legal, business and strategic advice to the CEO, management team, and Board of Directors regarding legal aspects of the company’s objectives. The General Counsel must have an exceptional understanding of software and Internet business transactions, intellectual property issues, and the trade-offs between legal and business risks, as well as a good grasp of corporate governance and other operational issues (HR, etc). He or she will be expected to:
- Identify, articulate, execute and publicly explain legal initiatives to the management team, Board of Directors, employees, participants in the Mozilla project and the public;
- Use expertise to create new and innovative solutions;
- Lead industry-wide discussions and initiatives relevant to the Mozillla Corporation;
- Work well with the Mozilla Foundation, the non-profit parent of the Mozilla Corporation; and
- Help shape business relationships between the Mozilla Corporation and commercial entities.
The ideal candidate will have:
- Significant leadership experience with management teams across a range of issues; preferably as a General Counsel
- “Knock ’em dead” understanding of the software and online business and legal worlds
- Proven ability to identify, design and implement creative solutions
- Excellent communication, interpersonal and team skills
- An aggressive creative streak, coupled with extreme flexibility
- Strong affinity for open, transparent, distributed work environments and for the goals of the Mozilla project
- A driving interest in the overall health of the Internet and related public policy issues
- Familiarity with and high interest in open source software
If you think you are this person, please contact Dan Portillo at firstname.lastname@example.org.
June 13th, 2006
There have been some questions about the RSS icon and trademark protection. The Mozilla Foundation filed a trademark application a while back during the process of evaluating what course of action to take. Same with creating a trademark license to see what it would look like.
After looking at this, we all believe that a community driven approach is best and that trademark licensing don’t make sense for a number of reasons. So several things could happen with the existing trademark application. The Mozilla Foundation could abandon the trademark application. The Mozilla Foundation could commit to managing the trademark only as determined by the community process.
The one thing that I don’t know how to do effectively is to give the mark to some other organization for it to manage. That’s because I don’t know of any generally known and accepted organization for dealing with trademarks. Creative Common is copyright only; the standards bodies aren’t trademark organizations. I’m pretty sure there are organizations that enforce particular marks, but I don’t know of anything analogous to a standards body for enforcing community-governed icons and marks. In the long run having such an organization could be very valuable and I think we’re going to see an increasing need for this. In the meantime, I think the options are as noted above: either the Mozilla Foundation has a trademark and manages it based on community process or we rely entirely on community norms.
My belief is that trying to have the Mozilla Foundation officially responsible for an icon that is already in use is going to cause angst as well as make it harder to have calm discussions about the RSS icon and the proper role for trademark in community-driven activities. This is counterproductive. If abandoning the trademark application (a) makes people feel safer using the mark and/or (b) allows us to have the community-driven trademark discussion in a calmer setting and without suspicion, then withdrawing the trademark application makes sense.
Look for more on the RSS topic from Frank Hecker shortly.
November 8th, 2004
The source code of Mozilla’s browsing and email clients is available under the Mozilla Public License (the “MPL”), an open source license certified by the Open Source Initiative. Until now we’ve used the MPL for our executable releases as well. It hasn’t been a perfect match, as the MPL is aimed at source code. And even if we change the MPL to clearly apply to executables it’s still an odd fit. One might have the right under the MPL to modify the code of the executable, but source code is the natural way to make most modifications.
The MPL is not designed for the average consumer who isn’t interested in the complexity of a license aimed at development methodologies. (That’s assuming the average End User is really interested in any End User License Agreement. Even with all my background in this area I find it tedious to read through End User License Agreements, so I can only imagine that someone who’s not trained in this and only interested in getting something done may not pay much attention to the license.)
Periodically people have suggested that our executables should ship with a EULA rather than the MPL. This is particularly true with Mozilla Firefox, which is aimed at end-users as well as our traditional developer community. So we’ve done this with the 1.0 release. I had hoped to get the EULA included much earlier, but my to-do list is longer than my capacity to execute.
The Firefox EULA is pretty basic. That’s not to say it is as short as I would like — just including the standard clauses takes space. I thought about doing some things with the EULA that aren’t standard in the industry, like talking about distribution rights so that people wouldn’t need to look elsewhere. But it turns out that this adds complexity and I decided to leave this out, at least for now. I’ve written many EULAs in the past — almost every EULA that Netscape every used, in fact. But I haven’t focused on this in recent years, and now I rely on legal counsel to remain up to date and vet the content of the license. In this, as in so many other things, I want to thank Heather Meeker of Greenberg Traurig for her great help and unflagging positive nature in the face of time constraints and great demands.
Many people, especially programmers, ask me why there is so much “shouting” in EULAs. The answer is that consumer protection statutes often require notices to be “conspicuous” so that consumers see them. One way to make things conspicuous is to have them in all capital letters. That leaves the license pretty disturbing to programmers who associate all caps with yelling, but it is hard to change given the legal parameters within which a EULA operates.
We would also like to have translated versions of the Firefox EULA and we’re working on getting this done.
I suspect that the Firefox EULA is not perfect. If I had more time I would have distributed it for review and comment. Firefox 1.0 is only the beginning of great new releases from the Mozilla project, and the license can improve along with other aspects. The Firefox EULA can be found at the Mozilla website.
September 7th, 2004
I was told that my last post on Localization Teams and Trademarks needed context to make sense to people not intimately involved in the Mozilla project. So here’s a bit of background.
The Mozilla project includes a phenomenal number of people who voluntarily localize Mozilla releases into their own languages. There are currently 30 localization teams registered for Mozilla Thunderbird, 48 teams registered for Mozilla Firefox and 104 teams registered for the Mozilla Internet Application Suite. Some groups do far more than translate strings, and may also translate website materials, localize the releases and evangelize use of these projects in their geographical areas.
The Mozilla Localization Project is also a volunteer effort, providing help, structure and guidance for the localization teams. The localization, evangelism and related efforts are part of what drives me to participate in the project. When I look up and see what people around the world are contributing to the Mozilla project, it’s hard to imagine not doing what I can. Nevertheless, mozilla.org staff and more recently the Mozilla Foundation have not had a close working relationship with many of the localization teams and sometimes we appear as the distant central group acting bureaucratic or autocratic. We’re trying to interact on a more regular basis with the localization teams through the Mozilla Localization Project leaders, the Mozilla Europe folks and our own efforts. But of course we’re imperfect, short on resources and probably don’t have as good an understanding of what the localization teams need as we should.
One area that’s been under discussion is how to respect the commitment, efforts and goals of the localization teams and still have a single Mozilla Firefox product and a single Mozilla Thunderbird product. We understand that some localization teams will want to make significant changes, perhaps including different, additional or locale-specific extensions, change themes and otherwise tune the releases to meet their view of local conditions. This is great; it allows a variety of options and experiments. At the same time, a product name should indicate what the product is. Having different releases with the same name would be very confusing. This is a basic strand of trademark law, and also fits with (at least my) general sense of what a product name means.
This means we need to figure out the application of trademark requirements to our localization teams. Integrating these two is trickier than it might sound. Trademark law is intended to allow consumers to determine the source of origin and the quality of goods. Trademark law is easiest to apply in a highly centralized setting, where all decisions are made by one party and everyone else does as they are told. Of course, our localization teams are highly decentralized groups of volunteers who help build the Mozilla project based on their dedication and interest.
I made the decision that the Mozilla Foundation will protect the Firefox and Thunderbird trademarks. This isn’t something I’m excited about doing, as trademarks require attention and limit flexibility. But I believe is critical to continued growth and vitality of the project — when someone downloads “Firefox” or “Thunderbird” we need to know what functionality they are getting. This decision meant that we needed a policy to do this while simultaneously recognizing the localization teams and hopefully helping them have both fun and pride in their work.
A bunch of people went to work to craft a policy. This involved the Mozilla Localization Program, Mozilla Europe, the Mozilla Foundation, our legal counsel, mozilla.org staff, various module owners and other dedicated people. I want to thank everyone who has put time and effort into this, and especially Bart Decrem for driving the process through to completion. It’s taken months and several drafts, and today the 1.0 version of this policy went live. You can find it at www.mozilla.org/foundation/trademarks/l10n-policy.html.
August 20th, 2004
I know there is angst and unhappiness about potential new localization plans and trademark limits. I knew this somewhat before, but I really know it now. That’s because Tristan, Peter, Axel, Gerv and others have made it a point to bring these concerns to the Mozilla Foundation and make sure we understand how important a topic this is. They’ve also made it clear that we haven’t done a good enough job at working with the localization teams. So we’re going to do a few things.
First, we’ve made the localization issues a regular topic of discussion with the Mozilla Europe folks. This way the topic won’t get dropped, and we’ll make sure that the Mozilla Foundation does a better job of both listening and communication. It also gives those in Europe an easier, effective way to raise your concerns — talk to the Mozilla Europe folks and they’ll make sure we get the message. We’ll do the same thing with Mozilla Japan. We’ll continue the regular IRC discussions with the localization groups with Mozilla Foundation participation. We’ll try to do a better job of explaining what’s going on and the constraints within which the Mozilla Foundation operates. That’s what I’ll try to do in the rest of this message.
The Mozilla Foundation believes it is important to make sure that product names such as Firefox are protected as trademarks. If this is not done, then the names can be used by projects and companies that are doing quite different things. For example, we would be very unhappy to see a new browser plugin named Firefox appear that is unrelated to the Mozilla project. We don’t want to see browsers with different technology underpinnings called Firefox. A browser that doesn’t have XUL for example, isn’t Firefox and we don’t want one to appear called Firefox. This would cause immense confusion.
So having “Firefox” be a trademark is important. This isn’t something I say lightly because having a trademark means that the owner is required to do certain things to keep a trademark viable. A trademark is used to identify the “source of origin” of the item bearing the trademark and to indicate quality. If the trademark is used in ways that don’t reflect the source of origin and quality level, then the trademark is weakened. If weakened enough, a trademark can be lost entirely. This is what happened to former trademarks such as “elevator” which started out as a trademark and become a general purpose noun through lack of enforcement.
I’m personally not a fan of much of trademark law, as it requires the trademark owner to do things that seem unfriendly to partners and associates. Nevertheless the Mozilla Foundation is going to comply with the requirements of trademark law to protect Firefox, Thunderbird, and other product names. We will do so in as flexible a manner as we can.
I recognize the effort, commitment and personal investment the localization teams have made to the Mozilla project. I also recognize that the localization teams take a great deal of pride in the releases that result and it is undoubtedly distasteful to think that the Mozilla Foundation many timezones away may somehow suddenly be involved.
We are currently working with trademark lawyers to determine the core set of trademark requirements, and to identify those things that trademark lawyers like but which aren’t actually absolutely necessary. We want to give the localization teams flexibility. So we’re working to take the legal requirements necessary for trademark protection and figure out implementation policies consistent with our enormous desire to recognize both the importance and the commitment of the localization teams. It’s actually been harder to get a clear picture of this from the trademark experts than I would have thought, and it’s taken more time than I would like as well.
We’ve spent a lot of time trying to sort this out and talking with folks from Mozilla Europe and the Mozilla Localization Project. We believe we’re getting close to circulating a draft policy. I imagine no one will think it’s perfect (well, maybe someone will, but I’m not counting on that) but hopefully it will be a good, workable balance.
We hope to have something posted for comment within the next week or so.