On april 21st 2010 the Court of Zwolle-Lelystad in The Netherlands ruled in the civil lawsuit that US-based Xoops Foundation LLC started against Stichting XOOPS (Dutch for XOOPS Foundation) and Herko Coomans, chairman of Stichting XOOPS and formerly an active volunteer in the international XOOPS community and the XOOPS.org website. In its ruling, the Court dismissed all claims of illegal activity of Stichting XOOPS and Herko Coomans as unproven by Xoops Foundation LLC, and sentenced Xoops Foundation LLC to pay due damages to Herko Coomans and Stichting XOOPS.
This brings an end to a 20 month period during which Xoops Foundation LLC made false accusations, legal threats, used aggressive slander campaigns and harassed me and my family. This had direct consequences for my friends and employers, as my reputation was actively being attacked by Xoops Foundation LLC.
The Court dismissed all claims Michael Beck (aka Mamba) made in the name of Xoops Foundation LLC, using nothing more than logic and common sense.
Not created to represent the XOOPS community
Xoops Foundation LLC claimed that in this case, they (legally) represented the XOOPS community. To back this claim, they produced three (yes, 3) signed letters from people claiming they’re active in the XOOPS community (which means they’re volunteers), and that they support Xoops Foundation LLC’s lawsuit. The online petition was dismissed altogether by the Court as irrelevant -anyone can produce a list of names.
Xoops Foundation LLC further claimed that their representation of the XOOPS community is similar to that of the Dutch Consumentenbond (Consumer Union), who had success in other legal disputes with legally representing its members (people who pay for a membership). Xoops Foundation LLC claimed this suit was a Class Action suit by the whole XOOPS community.
The Court dismissed the Class Action suit claim. Legally, a class action suit can only be started by an organization that actually represents its representee’s interests, both in its statutes and articles of incorporation, and in practice. The three letters of support do not impress the Court. In fact, the Court can’t find any claim of Xoops Foundation LLC’s representing the interests of the XOOPS community in its own Articles of Incorporation. In other words: Xoops Foundation LLC was not created to represent the XOOPS community.
I personally think that legal representation of ‘the XOOPS community’ is a farce. First of all, who are ‘the XOOPS community’? All registered accounts on the xoops.org website? Then what about the Spanish, Russian, French, Japanese, Chinese, German and Dutch XOOPS support websites? All registered accounts on those websites as well? If you go by the open and inclusive spirit in the open source world, anyone who uses, has used, developed anything on or with, or derived anything on the software labelled XOOPS and licensed under the GPL, is part of ‘the XOOPS community’. ‘The XOOPS Community’ must be huge, spread over the entire globe, completely undefined and certainly unorganized.
Fact is that only three (yes, 3) members of that enormous international XOOPS community- actively agreed to having Xoops Foundation LLC legally represent their interests. The rest of the international community did not sign for that mandate when they signed up, nor when they already were members of that community.
And what are that XOOPS Community’s interests anyway? Normally, where representation of interests in any form or shape is required, a form of democracy is created to facilitate the difficult process of consensus and shaping of collective interests. ‘The collective’ is not the same as ‘the sum of all’ or ‘the voice that cries loudest’, but embodies ‘the Greater Good’, that which is best for the group. A collective is not necessarily the same as an open source software community.
The way I see it, Xoops Foundation LLC seems to be created to put pressure on myself and Stichting XOOPS to get to the funds I helped organize for the Stichting, and loudly proclaiming that this is in the best interest of the XOOPS Community. Where is the democratic process that decides on what is best for ‘the XOOPS Community’ in its entirety? How is Xoops Foundation LLC governed and controlled by that XOOPS Community?
When I asked Xoops Foundation LLC for that information, I got no answer.
Stichting XOOPS was created in 2004 to support the open source use and development of the XOOPS software, under the terms of the GNU GPL. Nowhere in the Statutes of the Stichting XOOPS will you find any exclusive relationship to any specific part of the XOOPS community. This is done on purpose, as the Stichting was not created to govern any part of the XOOPS community, but to support the open source use and development of the software. This is further explained in the XOOPS Foundation Manifesto, written by the board members of Stichting XOOPS in 2008, where the English development project hosted on the xoops.org websites and the undefinable international community of volunteers, users, developers and supporters, and the Stichting itself, each have a specific role and place.
It is a sad thing that Xoops Foundation LLC tried to claim the XOOPS Foundation Manifesto as one of its own works -so much for openness and sharing- in the case productions. But Xoops Foundation LLC was created in 2009, a full year after the publication of the draft of the Manifesto (it never was finalized as a common governance model for XOOPS). To add to the confusion, later on in Xoops Foundation LLC’s Conclusion of Reply they claim the Manifesto is written by the Stichting and shows that there is a relationship between the project and the foundation. They clearly failed to grasp the concept written down so well in the Manifesto.
The XOOPS Community are intelligent people
Next, the Court dismissed Xoops Foundation LLC’s claim that they are the exclusive not-for-profit organization for XOOPS -and that because of that all assets belonging to Stichting XOOPS should be transferred to Xoops Foundation LLC.
The Court deems the XOOPS Community intelligent people, who can decide for themselves which non-profit organization they will donate their money (or anything else, for that matter) to. Furthermore, it is up to each individual organization to decide how to spend the donations, as it sees fit.
Stichting XOOPS was created to support the open source use and development of the XOOPS system under the terms of the GNU GPL. The license that dictates the terms of the distribution of the code of the XOOPS system states that nobody can put any limitations on how anyone (re)uses that code, including changing the terms of the license. This is the spirit of open source: do not limit how anyone uses the collective work. The GPL does not transfer all copyrights of the (code) author to any central organization. All it does -and its power is in its simplicity- is give everyone a non-revocable, everlasting right to use the code as you see fit. That is what open source means.
So I do not see how any organization can claim property rights of anything created by anyone else in the spirit of open source. I feel that that just goes against the spirit of true openness, one of the foundations (no pun intended) of the open source movement. So if Xoops Foundation LLC claims to work in the spirit of open source, they are proving themselves wrong in this case. It may even be in direct violation of their Articles of Incorporation -and as such, should be held accountable. But by whom? Who has the authority to hold the board of Xoops Foundation LLC accountable for their actions?
Again, when I asked Xoops Foundation LLC this very question, they refused to answer.
This whole claim of a legal commitment from Stichting XOOPS to Xoops Foundation LLC defies logic. First of all, Stichting XOOPS was founded in 2004. Xoops Foundation LLC in 2009. There simply was no Xoops Foundation LLC to commit any rights of ownership to when Stichting XOOPS’ statutes were written.
Secondly, how would creating a legal entity such as Xoops Foundation LLC in another country, with similar goals, mean that legal ownership of assets is automatically transferred to that newly created organization? If I created a ‘Planet Wildlife Foundation’ here in the Netherlands, and give it similar goals as the WWF, would that entitle my newly formed organization to any and all assets of the WWF? Of course not! Anyone can understand that by that example. Why would it be any different in the case of Stichting XOOPS and Xoops Foundation LLC? The Court saw right through the claim and dismissed it.
It gets stranger still: Xoops Foundation LLC claimed that because I researched if it were possible and sensible to create a US-based Foundation before we founded it here in The Netherlands, Xoops Foundation LLC, being actually based in the United States, is the One True Foundation. All this strikes me as extremely far-fetched, illogical and just plain dumb.
Free as in Freedom
Finally, the Court dismissed Xoops Foundation LLC’s claim that by selling the xoops.com domain -which they claim is not even my personal property- to Stichting XOOPS for 4.000 euro means that I embezzled money -which they claim is theirs anyway- from Stichting XOOPS for private use.
The Court states that I clearly proved that I acquired the xoops.com domain as a personal asset and not as a representative of the XOOPS community. Xoops Foundation LLC failed to prove that they are legally entitled to the xoops.com domain. Stichting XOOPS is in its right to acquire the domain for any sum it deems fit, so the Court did not see any legal obligations for this transaction. So it dismissed the claim.
This claim hurt me the most. Practically, as this was the main argument to have my personal and the Stichting bank accounts (including the household account my wife and I use) frozen and seized for the amount of 25.000 euro’s. This means a whole lot of reorganization, plus a huge amount of hassle. But maybe more so emotionally, as now my wife was a victim of this suit too. And the accusation itself is harsh too: I would have stolen money from them! And this accusation was made in public too, something being picked up by popular media here in The Netherlands. My reputation was under attack, and my defense was only in court. I don’t know if you know what it means to be accused of something you didn’t do in public, but it hurts. A lot. I had sleepless nights because of this. So did my wife. And I has to inform my employers, as it was my full name they published everywhere. Suddenly it wasn’t just me fighting a battle in the virtual world -how sad and bad it may be in its own right- now it was my family, friends, my employer and my reputation that was under attack.
And for what?
I bought the xoops.com domain before Stichting XOOPS was created. So I couldn’t have bought it on its behalf. At the time, I was an active volunteer on the xoops.org website, managing some aspects of the community there. I called myself the XOOPS.org project manager. But all I was -all everyone who donates time and other resources on xoops.org is, is a volunteer. Should that mean that everything I do goes to the community (and as Xoops Foundation LLC claims, its legal representative)?
Of course not. The Open Source business model is built around the concept of Free Software. Apparently Xoops Foundation LLC thinks that it means that I am legally bound to give all my resources away for free, as in gratis. But as most of you know, the ‘free’ in Free Software stands for Freedom. As in Freedom of Speech. As in Freedom to do with my resources what I want to do with them. Be it make them available for use in a common pool -such as a community- or not. This Freedom is what powers Open Source Software development. It is what makes it great: open and free. Who are Xoops Foundation LLC to take away that freedom?
One last thing. What Xoops Foundation LLC fails to communicate about the (legally valid) transaction of the xoops.com domain from my personal to the Stichting’s assets, is that I had the domain valued by three (yes, 3) different independent domain valuating services. The lowest value of xoops.com was $6.500, the highest $14.000. The 4.000 euro -which translates to about $5.500 is below xoops.com’s market value. And now the xoops.com domain can be used by Stichting XOOPS to support the open source use and development of the XOOPS system under the terms of the GNU GPL.
One way to look at it, is that I donated $1.000 to $8.500 to the Stichting. If it now decides to sell it for its real market value, it’d have made a hell of a deal for the support of the open source use and development of the XOOPS system. And isn’t that what the XOOPS Community is all about?