May 6, 2010 Posted by Herko on May 6, 2010 in Personal notes | 2 comments

Xoops Foundation LLC loses its civil lawsuit against Stichting XOOPS and Herko Coomans

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?

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2 Responses to “Xoops Foundation LLC loses its civil lawsuit against Stichting XOOPS and Herko Coomans”

1. herko says:

   6 May 2010 at 13:58

   New blog post: Xoops Foun­da­tion LLC loses its civil law­suit against Sticht­ing XOOPS and Herko Coomans http://bit.ly/bQPYlb

   This com­ment was orig­i­nally posted on Twit­ter
2. fabricemous says:

   6 May 2010 at 15:27

   Blog­post from @herko “Xoops Foun­da­tion LLC loses its civil law­suit against Sticht­ing XOOPS and Herko Coomans” http://bit.ly/bQPYlb

   This com­ment was orig­i­nally posted on Twit­ter

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