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openSUSE:Foundation Extra Resources
Rational behind Requesting additional resources
The openSUSE Board believes that running a foundation will require significant extra book keeping and administrative resources. We believe that the amount of work required is more than can be reasonably expected of volunteers. Considering that openSUSE has struggled to fill its current volunteer treasurer role, we don't believe we can proceed with creating a foundation without first answering the question of how this work will be done.
One possible solution could be to go to the community and some of our partner companies including SUSE to ask for such funding. This still has associated risks in terms of being able to guarantee long term funding. Thus the board would be hesitant to pursue this approach. It would also be inefficient in many ways, especially if 1-2 larger companies such as SUSE were providing the majority of the funding, as the person the foundation employs would need to manage thei own payroll and HR etc as well as handling the administration of the foundation.[Note Axel: This is standard esp. in smaller companies, unless it is oursourced to a tax agent. I feel this argument is very weak]
We as the board believe that the ideal and probably only short to medium term solution to this issue is to ask SUSE to employ someone to take on this administration role on behalf of the foundation. Having such a resource right from the start would dramatically ease the setup of the foundaton. SUSE's management has committed many times in the last few years to continue sponsoring openSUSE by providing all the essential resources that the project needs to continue. Beyond infrastructure and developers this sponsorship already covers employing a full time person dedicated to events and marketing as well as someone to manage openSUSE's Travel Support Program (TSP). We believe that this new role could start out as an extension of the person managing the TSP's role. [Note Gerald: that makes assumptions in various way - the board should request the what?, not the how?] The board's past experience in not being able to adequately manage certain situations around finance and sponsorship could probably create a compelling argument that having a foundation is essential for openSUSE. Therefore, having someone to deal with administration is essential. In the following let's focus on the benefits to SUSE of having an openSUSE foundation that in the long term will outweigh the cost of SUSE providing some extra support.
There have been a number of instances where companies wanted to sponsor the openSUSE Conference. The fact that they had to transfer the money directly to SUSE has generally lead them to sponsor at a lesser level by purchasing goods for the conference or by not sponsoring at all. Based off this and our experiences with openSUSE Asia Summit, if openSUSE had a way to accept money via a foundation and put enhanced effort into finding conference sponsorship, SUSE likely would need to spend significantly less on the conference. 
The openSUSE project has in the past been offered significant hardware and contracts for access to cloud resources. The openSUSE project was not able to accept such donations due to the companies involved not wanting to sign contracts with SUSE, or for the hardware to be owned by SUSE. [ 2] The more openSUSE's infrastructure comes through third party donations, the less SUSE will need to spend in this area. This could be quite a significant saving, given that in previous years SUSE has done partly a poor job of meeting its commitment to provide the infrastructure that openSUSE needs. With regards to capital expenditure on hardware, much of openSUSE's infrastructure is in need of replacement.  [Note: needs to be rephrased, but sentence was too loooong uand so not understandable for me. And note that the heroes still have not provided a list of requirements, for five months now which SUSE is aware of.]
The following points are ways that SUSE could use the foundation to its advantage. We as the board aren't expecting that SUSE will do all / any of these things, but we are happy to have discussions around these ideas to get them to work for SUSE.
SUSE could give a portion of its openSUSE budget to the foundation rather then spending it directly. , This could have a positive impact from a tax perspective due to the foundation being a not-for-profit organization. In particular it would make a lot of sense for the money that SUSE currently provides to openSUSE for sponsorship of conferences and Travel Support. In this context, extending the role of the person currently doing the travel support admin to also include other foundation admin might make sense.
SUSE's Legal team are also keen for us to look at the idea of transferring parts of openSUSE's IT infrastructure to the foundation, such that for the purposes of GDPR the data that belongs to openSUSE is owned / controlled by the foundation. This would greatly reduce SUSE's legal liability, and it will also cost significantly less for the openSUSE project to deal with GDPR requests than it currently costs SUSE (although these may need to be handled by whoever is looking after the administrative side of the openSUSE project). Beyond that, the more access openSUSE's Heroes team has to openSUSE's infrastructure, the more they can do on their own, which will save SUSE Employee's time & money. Having said that given how integrated openSUSE and SUSE's development systems are, it may not be feasible to achieve this from a technical perspective in the short term (?).
Most importantly we believe that an openSUSE Foundation will lead to a stronger openSUSE which will in turn lead to a stronger SUSE due to how closely the two organizations are linked. At the same time it is opening the openSUSE project for other partners that are currently reluctant to deal with SUSE, motly for finance reasons, but as well for justification reasons (SUSE is a commercial company, openSUSE a foundation....it is easier to donate)
Onto the trademark issue it basically falls into three parts, the issue that doesn't needs to be resolved now is whether the foundation or SUSE own the trademark so I will deal with that second. The most important issue is that like the charter the name of the foundation can not be changed. This means that for the foundation to use openSUSE in its name it needs to have a guarantee that if SUSE changes direction in the future and stops caring as much about openSUSE or gets dissolved into another company etc the trademarks are transferred to the foundation.
Without such an agreement, we almost certainly could not use openSUSE in the foundations name, instead we would likely need to create the foundation under some other name. At some point in the future the community may decide to rebrand distro's etc away from the openSUSE name, especially if the relationship between openSUSE and SUSE was to significantly change. It is clear from the outcome of the recent name change vote that this is not something the community wants.
The second trademark issue that needs to be resolved, is generally speaking, under trademark law someone can't take out a new trademark that is existing to a similar one and then compete directly with the existing trademark. Under the rules for a not-for-profit foundation we almost certainly couldn't set up a foundation in such a way that it couldn't compete directly with SUSE. The legal advice that Axel received shows that there are cases where companies with similar names exist and compete mostly as a result of companies splitting up. Especially cases where they may have been joint owned by a family and split as part of an inheritance. In this case we need to formalize that all relevent parties are happy that this can apply with the SUSE and openSUSE trademarks (the advice the board currently has is this should be fine). If not, then again we will need to look at alternative foundation names.
Finally there is the issue of whether the trademarks should be transferred from SUSE to openSUSE in the short to medium term. As long as the two above issues are resolved there is no need for this transfer to happen short-term. In some ways it would benefit the foundation, if SUSE continues to hold the trademark, as currently they are legally responsible for defending the trademark (which SUSE has done in the past for openSUSE). The foundation should likely want any agreement to transfer the trademark to the foundation to also include that SUSE will continue to cover the legal costs of defending the trademarks. Under such agreements, there is little benefit to SUSE or openSUSE to transfer the trademarks especially while SUSE continues to give openSUSE board permission to administer the mark.
Following on from our discussions in the board meeting this week I thought i'd throw down some more things to paper. I'll get to trademarks in a second but I thought i'd start with some ways that we can probably give SUSE some guarantee's and a safety net into the future. Under the form of foundation we are proposing our foundation must have a charter which can not change. One of the reasons for choosing this model is that we can use the charter to provide security that openSUSE can't elect a new board and radically shift direction.
To bring everyone back up to speed and for convenience i've included below the original proposal which includes our initial charter proposal. Gerald would you be able to raise this with SUSE's management and see if they can provide us with some feedback as to what they'd like to see included to give them a safety net?
As the charter can not change in the future it would be unwise to reference specific technologies (who knows if Linux will be the standard kernel for most open source OS's in 50 years for example). However, it could include statements that reference that everything the project creates should be under an open license and publicly available. It could also include a statement that indicates that anyone may contribute to the project as long as their contributions meet the standard of quality that its members expect and are within the legal payground (resticted formats!). Those two statements need to be worded better, but between them it should ensure that even if openSUSE did something like decide to adopt a BSD kernel, SUSE or anyone else would be free to continue to contribute a Linux one. You could go further and state things like the project representatives shall have effective control over all the projects infra but currently that would involve SUSE opening up more things.