Mentor agreement terms

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rbd

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Mar 11, 2008, 9:59:42 AM3/11/08
to Google Summer of Code Discuss
I skimmed the legal contract on the mentor sign-up page (http://
code.google.com/soc/2008/mentor_step1.html). My interpretation is that
at any time in the future, some wacko can come along and sue Google's
deep pockets for just about any (false) claim relating to a Summer of
Code project, and Google can collect their attorneys' fees from the
mentor. I don't object to making WARRANTIES about my work (and if I do
something evil, Google can and perhaps should sue me), but writing a
blanket INDEMNITY to a big corporation is insane. Am I missing
something? -Roger Dannenberg

Here's the INDEMNITY clause from the URL mentioned above:

3. INDEMNITY
Each participant in the Google Summer of Code (Student or Mentor
Organization) shall indemnify, defend and hold harmless Google, its
parent
corporation, subsidiaries and affiliates and their respective
officers,
employees and agents, and each of Google's website partners from any
and all
claims, demands, damages, costs and liabilities, including reasonable
attorneys' fees, made by any third party due to or arising out of
that
participant's acts or omissions, including claims arising out of that
user's
use of the Google Summer of Code Site or participation in the Google
Summer
of Code Program; his or her Project Submission, posting or
transmission of
any application or code; or his or her violation of these Terms of
Service.

Leslie Hawthorn

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Mar 11, 2008, 10:12:45 AM3/11/08
to google-summer-...@googlegroups.com
Hi there,

IANAL. Fortunately, one of the engineers on the open source team is a
lawyer, so I'll have him take a look at this. Please note, though,
that Google can't provide you with legal advice - if you are truly
concerned about accepting this agreement, your best bet is to obtain
legal counsel to review it.

Cheers,
LH

--
Leslie Hawthorn
Program Manager - Open Source
Google Inc.

http://code.google.com/opensource/

I blog here:

http://google-opensource.blogspot.com - http://www.hawthornlandings.org

Leslie Hawthorn

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Mar 12, 2008, 3:15:00 AM3/12/08
to google-summer-...@googlegroups.com
***This mail does not constitute legal advice in any way shape or form.***

From our Senior Engi-Laywer:

To clarify, the indemnity clause states that we *can* (not necessarily
*will*) collect from you what someone collects from us because of
something you did during the summer of code.
This is fairly typical. In reality, what generally happens is that if
we were sued because of something *you* did during the summer of code,
the suit would be transformed into a suit against you, instead of a
suit against us, and that would be the end of it. Sometimes this is
impossible, and in that case, we certainly don't want to be liable for
something you do, particularly since we have no control over your
actions (nor should we, since your allegiance is to the mentoring
organization, not Google).

Lastly, you say "and if I do something evil, Google can and perhaps
should sue me", which seems incongruous with your statement that you
have a problem with this indemnity, since this is exactly what the
agreement says. It only covers your activities related to the summer
of code.

As with all legal contracts, you are free to disagree and not sign
it. It does mean you would not be able to participate, and that
would certainly sadden us, but all the indemnity clause does is ensure
that liability for your acts lies with you, and not us.

Luigi Rizzo

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Mar 12, 2008, 3:52:52 AM3/12/08
to google-summer-...@googlegroups.com
On Wed, Mar 12, 2008 at 02:15:00AM -0500, Leslie Hawthorn wrote:
>
> ***This mail does not constitute legal advice in any way shape or form.***
>
> >From our Senior Engi-Laywer:
>
> To clarify, the indemnity clause states that we *can* (not necessarily
> *will*) collect from you what someone collects from us because of
> something you did during the summer of code.
> This is fairly typical. In reality, what generally happens is that if
> we were sued because of something *you* did during the summer of code,
> the suit would be transformed into a suit against you, instead of a
> suit against us, and that would be the end of it. Sometimes this is
> impossible, and in that case, we certainly don't want to be liable for
> something you do, particularly since we have no control over your
> actions (nor should we, since your allegiance is to the mentoring
> organization, not Google).
>
> Lastly, you say "and if I do something evil, Google can and perhaps
> should sue me", which seems incongruous with your statement that you
> have a problem with this indemnity, since this is exactly what the
> agreement says. It only covers your activities related to the summer
> of code.

i believe the original poster was worried that the indemnification
clause holds irrespective of the truth of the accusation or of the
court's judgement.

If, as explained, someone sues google claiming "your student X sold
to Martians a copy of our code" and this goes to court, and hopefully
after an extenuating legal battles multiple judges agree that there
is no evidence of the existence of Martians, so X is completely
innocent, Google wins but the verdict does not indemnify google for
legal expenses - would you go back to student X or his mentor
asking them instead ?

A "YES WE CAN" answer does seem to suggest the intention to follow
that route, at least these days :)

Now, if the mentor agreement had something to clarify this type
of situations, perhaps people would feel better about it...

cheers
luigi

rbd

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Mar 12, 2008, 10:25:27 AM3/12/08
to Google Summer of Code Discuss
Yes, Luigi expressed my concerns precisely. I first became aware of
the indemnification trap after I signed a patent license agreement
with Carnegie Mellon. At the time, CMU lawyers were putting in the
"standard" indemnity clause, but as you can imagine, if there were
ever a dispute, the logical target would be CMU because of its
endowment, and there I was holding a contract where I offered to pay
CMU's legal bills! Carnegie Mellon later realized this was not proper
and removed the clause. As far as I know, it has not asked faculty or
students to sign anything like this for many years. The MIT Press and
other publishers also ask authors to sign an indemnity clause like
Google's. Fortunately, these are almost always paper contracts, and I
always cross them out and initial the change. I've actually
corresponded with MIT Press about this, so it's not a case of staying
below the radar or no one noticing my contract alterations -- they've
actually agreed with me that the indemnity clause is not necessary for
them to publish my work. I *do* warrant that I have not plagiarized
etc, and I think that's a reasonable thing for a publisher to
require.

Also, don't think that "the suit would be transformed into a suit
against you and that would be the end of it" is a simple or free
operation. The reality is that if Google is involved in a suit it will
be because Google has deep pockets, and Google will address the claims
definitively with $500+/hour lawyers flying out to the strategically
chosen jurisdiction of the claimant. I think if someone goes after
Google, using a summer of code project as a pretext, Google should
take care of itself and not ask students and mentors to pay their
legal bills.

I think this "indemnity" thing is something lawyers get taught in
school, they write it into every contract, and the only problem is
that the client (i.e. Google) needs to go back to them and say "no,
this is a deal-breaker for anyone in their right mind, so take it out
now or we'll be discussing this online for days" :-)

Some interesting points:
- Google Mail does not have an indemnity clause.
- The Student contract for the Summer of Code *does* have an
indemnity clause. Do parents know what their children are signing?

Leslie Hawthorn

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Mar 12, 2008, 10:07:23 PM3/12/08
to google-summer-...@googlegroups.com
Hello everyone,

More from the Eng-i-Lawyer. Once again this is nothing like legal
advice in any way, shape or form.

--


>
> i believe the original poster was worried that the indemnification
> clause holds irrespective of the truth of the accusation or of the
> court's judgement.
>
> If, as explained, someone sues google claiming "your student X sold
> to Martians a copy of our code" and this goes to court, and hopefully
> after an extenuating legal battles multiple judges agree that there
> is no evidence of the existence of Martians, so X is completely
> innocent, Google wins but the verdict does not indemnify google for
> legal expenses - would you go back to student X or his mentor
> asking them instead ?

This represents a confused view of what would happen.

Your argument seems to be "but Google could get sued for something
ridiculous, i don't want to pay for this!", and the answer is "you'd
be paying anyway because they'd have to add you to the suit".

If someone sued google claiming "your student X sold to Martians a
copy of our code", Google would say "then you need to sue student X,
see our indemnity clause", and X would have to be added to the suit
(see "Required joinder").
In addition, though the other side would fight it tooth and nail, it
is likely that Google would simply be dropped from the suit (or at
least, have very minimal interaction in the lawsuit), and it would
just be pretty much a suit between X and whoever was originally suing
Google.

>
> A "YES WE CAN" answer does seem to suggest the intention to follow
> that route, at least these days :)

Well, no.
Just because you can do something doesn't mean you will.
In any case as your hypothetical says, the claims were completely
ridiculous, you (and Google) would likely be awarded attorney's fees
and costs (some statutes don't allow for this, so it depends on the
exact claims). In a case like this, even if attorney's fees were not
awarded, it is unlikely Google would ask you for costs.
If the claims had merit, but you still won, you likely wouldn't get
attorney's fees. However, if the claims had merit, and Google had to
defend you, why shouldn't Google get its money back for something you
did?
----

One final note folks, I don't want this thread to turn into a long
legal discussion. The real answer here is for those who may be
uncomfortable executing the agreement to have it reviewed by their own
counsel and determine whether or not they feel it is appropriate to
sign it.

We've had hundreds of projects and thousands of mentors participate
and a lawsuit has never happenned, so while I respect your desire to
best understand what you're signing, you can either trust us and the
great track record we have with the program or get your own lawyer.

Cheers,
LH

rbd

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Apr 2, 2008, 1:24:33 PM4/2/08
to Google Summer of Code Discuss
> The real answer here is for those who may be
> uncomfortable executing the agreement to have it reviewed by their own
> counsel and determine whether or not they feel it is appropriate to
> sign it.
It took some time, but I *did* discuss this with a lawyer. Our
conclusion is that the indemnification clause is pretty broad. It
could apply to IP claims, product liability claims, etc. Granted, this
is all unlikely, but I really don't understand why Google wants me to
take on this risk. It seems to me that if Google wants mentored
projects, there's as strong an argument for Google to indemnify
mentors as the other way around. Since nothing has happened before, I
don't feel very confident that Google wouldn't try to assert this
clause in the event of a significant claim against Google. (I do feel
confident that everyone at Google I've interacted with has the best of
intentions, so I mean this as a general comment on the nature of
organizations and not any kind of insinuation.)

I learned that statutes of limitation at least work in our favor --
even if the indemnity clause has no time limit, claims generally do.
This is especially favorable to students who do not have significant
assets.

On the other hand, mentors are more likely to have assets and families
to worry about. I do not want to sign the mentor agreement as is. Does
anyone know what it would cost me or Google or a project for
insurance, and does it exist? Meanwhile, the best solution for me
seems to be to hire students myself.

Chris DiBona

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Apr 2, 2008, 1:40:59 PM4/2/08
to google-summer-...@googlegroups.com
I have to admit I see this as a project/org issue. We have turned down
orgs who have had a cavalier attitude toward intellectual property and
this is part of that. Yes, you indemnify google from contributory
infringement claims. That's fair, we see projects as being responsible
for their code. If a student, which we fund, brings in code that then
leads to a lawsuit against a project, and then us, we want to make the
dividing lines clear. We don't clear the code, or just the student, so
if a mentor and org take in code that is that transparantly
infringing, thats not really our problem.

I might point out that the agreement with the student makes this super
clear that they certify that they have the right to release any ip
they might release to the project, but expecting Google to indemnify
175 projects and 1000+ mentors from thier own bad acts is not going to
happen.

That also said: This is why we donate 200k/year to the software
freedom law center. If you are sued, you'll need a lawyer to help out,
and if we're a co-defendent, we'll end up paying anyhow.

Chris

--
Open Source Programs Manager, Google Inc.
Google's Open Source program can be found at http://code.google.com
Personal Weblog: http://dibona.com

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