Nathan Kelley phyax at
Sat Oct 26 02:28:59 UTC 2002

To OSI License Discussion subscribers,

> From: Graham Bassett <bassett at>,

> There is authority to show that, at least by analogy, equity could 
> allow such specific performance.  Multiple developers could be joined 
> in an action or the open community or communities who have overseen 
> the development could effectively represent the interests of such 
> distributed developers. Critically, the organiser of such a community 
> may be seen to have a fiduciary duty to their members as Bulun Bulun 
> was seen to have to his tribe when he coded the dreams of the 
> Ganalbingu people in an artistic fashion. (John Bulun Bulun v R & T 
> Textiles Pty Ltd  [1998] 1082 FCA per Doussa J [] 
> 23/08/01):
> "The conclusion that in all the circumstances Bulun Bulun owes 
> fiduciary obligations to the Ganalbingu people does not treat the law 
> and custom of the Ganalbingu people as part of the Australian legal 
> system. Rather, it treats the law and custom of the Ganalbingu people 
> as part of the factual matrix which characterises the relationship as 
> one of mutual trust and confidence. It is that relationship which the 
> Australian legal system recognises as giving rise to the fiduciary 
> relationship, and to the obligations which arise out of it."
> Aren't code writers the interpreters of our dreams in the digital 
> world? The leader of the community could be the equitable owner of the 
> copyright in the code made by the collective.  The organiser's 
> fiduciary role would then be to seek specific performance of any 
> breach for, and on behalf of, the community who have given him or her 
> their trust and confidence as part of the factual matrix in the 
> development of the code.

Graham, you make a very good point. Indeed, there is an increasing need 
to establish liability using measures other than money. I suspect that 
such measures will be codified in response to the proliferation of 
no-fee services, though, rather than Open Source software.

However, while such measures could be used by Open Source authors to 
seek redress against proprietary vendors such as you suggest, it could 
also come back to haunt if a large user of Open Source packages decides 
to sue, or otherwise go after, their author(s). Admittedly there would 
be no reason for them to do so, but the possibility can't be discounted.

BTW, hello from a fellow Australian :-)

Cheers, Nathan.

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