[OpenAFS] Funding the formation of an OpenAFS Foundation

[Jeffrey Altman]

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On 9/27/2012 12:10 AM, Troy Benjegerdes wrote:
> Have the USENIX association lawyers been made aware they are accepting =
funds in a manner which may expose them to trademark litigation from IBM?=
 Either this trademark IS an issue, and blocks creation of a foundation, =
and ANYONE that accepts funds for doing work on 'OpenAFS' is potentially =
liable, or it's not.

There are several things wrong with your statement.   First, as you may
have noticed, IBM has never sued the OpenAFS Elders nor has it sued any
of the support organizations that accept payments for developing source
code and contribute it.   Holding a trademark permits the rights holder
to enforce their rights when they believe the brand represented by their
mark is being damaged.

USENIX is not at risk of being sued for collecting and distributing
funds on behalf of the OpenAFS Elders because:

 1. IBM is represented on the OpenAFS Elders.
 2. IBM was involved in the discussions that lead to the
    establishment of USENIX as a recipient of funds in 2000.
 3. IBM through its representation on the OpenAFS Elders
    are aware of how the funds are collected and how they
    are used.

The trademark is an issue for the establishment of a corporate entity
(for profit or not-for-profit) because one of the things the entity
needs to be able to assert to the State in which it is incorporated is
that the corporate name is does not knowingly violate marks owned by
someone else.  This is typically demonstrated by hiring a firm
specializing in trademark searches to obtain a report indicating that
their are no conflicts in the desired market.

The "AFS" mark was registered by Transarc and acquired by IBM and the
"OpenAFS" mark was created by IBM in 2000 via the publication of the
DeveloperWorks source code release and the subsequent creation of the
OpenAFS Elders.   It is therefore necessary that before a corporate
entity be formed with "AFS", "OpenAFS" or derivatives in the name that
it obtain permission to use the mark from the owner.   The same issue
would arise with the "Andrew File System Foundation" because the
"Andrew" mark is property of Carnegie Mellon University.   It is worth
noting that the reason Transarc's mark is "AFS" is because CMU would not
grant permission to use the "Andrew" mark.   And yes, inquiries to CMU
have been made for use of the "Andrew" mark as well to no avail.  CMU
will only grant permission to use the "Andrew" mark in the file system
space if IBM puts in writing that it agrees there is no conflict.

The OpenAFS Elders have existed for nearly twelve years.  During that
time those of us on the Elders have listened to the wishes of IBM with
regards to how IBM would like to see OpenAFS evolve.  I would never
claim to speak for IBM or its representatives but in my nearly nine
years working with IBM as an Elder and a Gatekeeper, the primary concern
has always been maintaining backward compatibility and avoiding
interoperability issues between IBM's AFS software which continued to be
developed and supported after OpenAFS was released and the distributions
produced under the OpenAFS name.

The confusion and interoperability problems surrounding DFS caused a lot
of pain for many organizations and left a lasting memory within IBM.
IBM's representatives have repeatedly let the OpenAFS Elders know how
important it is that similar problems not occur surrounding AFS.  The
non-IBM members of the Elders and the Gatekeepers respect the wishes of
IBM and its representatives.  After all, without IBM we would not have
OpenAFS at all.

You keep talking about how you want large corporations to donate to this
Foundation.  Ensuring that the Foundation is free and clear of
intellectual property disputes is one of the requirements for obtaining
donations from large corporations.  That requirement is not theoretical,
it has come up in previous negotiations.

The fact is that OpenAFS has survived for nearly twelve years partly
because there has been no clear source of money.  Does OpenAFS violate a
patent held by someone that is not IBM?  Probably.  Is it worth suing
over?  Held no because there is nothing there to pay damages and OpenAFS
is not a big enough threat.  If a Foundation is going to be established,
it must be established with the expectation that it might someday
receive large quantities of money.  In that case, it is necessary that
all of the i's be dotted and the t's be crossed.

Securing the necessary intellectual property rights is simply one of the
prerequisites.  There are many others:

 * deciding membership vs non-membership organization

 * deciding the governance model

 * defining the corporate mission

 * creating a business plan

 * determining where the sustaining funding is going to
   come from to meet the goals laid out in the business
   plan

That last point is extremely important because where the money will be
coming from determines whether the organization can be a 501c3 or 501c6
or some other legal form.

You cannot simply snap your fingers and say "Here is a Foundation".  I
frequently use the MIT Kerberos Consortium as an example because I was
involved in developing the business plan for it and selling it to
stakeholders.  Should it be an entity that is part of MIT, a subsidiary
of MIT or be independent?   Who staff would be required?  What was it
going to promise to contributors?  Would it be a membership based
organization and if so, what determines membership?   What was the
Consortium going to promise to deliver in exchange for the
contributions?  Would fulfilling those promises be legal for an
independent not-for-profit or for MIT itself?  What are the annual
budget requirements?  How much of that budget must be covered by
financial commitments before enough of the promising can be fulfilled to
avoid disappointing the early contributors if the full funding target
cannot be reached?  All of these are questions that must be addressed.

In my opinion, a Foundation is not viable unless it can staff at least a
part time Executive Director, a part time system administrator, and one
full time gatekeeper with enough experience and cross platform expertise
to perform architectural reviews, code reviews, design test
infrastructures, etc.  Other expenses for attorney fees, accountant
fees, payroll taxes, employee benefits, and other overhead must also be
budgeted for.  I do not believe that staffing level is sufficient for
the needs of the community.  It is the absolute minimum.  Therefore, I
do not believe a Foundation is viable unless it has at least $250,000 a
year in revenue.

Jeffrey Altman



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