I would vote for obtaining what’s formally called a “Legal Opinion Letter” from competent counsel about the proposal. This should then be posted publicly and a vote from there.
One idea for someone to consider for this Opinion Letter is https://otonomos.com
I’ve been following them for some time but haven’t had a reason to hire them.
@roberto I am qualified to do a detailed analysis but I would not offer one for public consumption (nor should any other lawyer) for the simple reason that doing so would (i) invalidate attorney-client privilege and (ii) telegraph any weaknesses in one’s own case.
Legal advice in these situations would have to address potential weaknesses in one’s own position as it’s important for a client to have that information in order to assess all the options as well as the risk of launching legal action.
That’s the main reason I stuck to hypothetical examples in my earlier post.
Also, you don’t need a detailed legal advice to raise concerns with an infringer. All we need is the person being infringed to confirm that they would like the situation addressed and either reaching out to the infringing party themselves or engaging a lawyer to do so.
Unless @iamdefinitelyahuman (or whoever claims to be the IP owner) or one of the Curve management team decide to take action, I’m not sure there is much more for the community to do, even if a vote is taken. It’s very possible they don’t agree with OP that any action should be taken here.
Hi Daimon,
I think we’re about to the point where it makes sense to move something forward to a DAO vote since this is now one of the most-engaged posts ever on the Cure governance forum (currently 6th but almost 5th in number of views, 10th and rising in the number of replies.)
I don’t think some of the facts related to the IP are fully understood right now, so I think the following course of action would be best to get the ball rolling:
A US-licensed lawyer or firm interview the Curve Core team members who have a connection to (a) how Curve was established, (b) who wrote what code, under what agreements, and when, and (c) what (if any) written agreements were executed with third parties related to IP. As part of that interview, the lawyer/firm would execute basic representation agreements with each team member limited to their involvement in Curve and waiving conflicts between and amongst Curve members.
On that basis, the lawyer/firm should make a recommendation to the Curve Core team members as to whether it would be in the best interests of Curve’s ability to protect its IP for Curve to change/formalize its legal circumstance (i.e. incorporate, found a trust to own the IP, etc.) or take other actions (i.e. execute IP assignment/license agreements, etc.). Since that recommendation would only be made to the Curve Core team members who participated in the interviews, privilege would be maintained.
Assuming the Curve Core team members wished to proceed with any of those recommendations, they could, if they felt it appropriate, sponsor a DAO vote to ratify those actions and give a general explanation as to why they supported them. The lawyer mentioned in the items above could help them craft those public statements in a way that would clearly convey the proposal and its costs/benefits without affecting the confidentiality of the legal advice given in the points above. Should Curve decide to create a legal entity, the retention agreements mentioned in #1 above could be modified (or pre-written to contemplate) transitioning it over to the legal entity.
Once those items above are done, then the next step would be related to any actual IP assertion activity. I would recommend those questions be tabled for now until the above happens (or doesn’t) as it’s in my view entirely derivative of the occurrence of the items mentioned above.
Final point: I think should any lawyer(s)/firm(s) be interested in taking on the tasks mentioned above, we should have an open opportunity for them to present their credentials and offers and let the community either by DAO vote or forum consensus or other mechanism be involved in the selection (provided of course that the Curve Core team members all consent).
Thoughts?
I’m still waiting to see if the IP owners or Curve leadership team step in here to comment.
While there might still be claims available to those of us who have investments in Curve (I’d need to think about that more), the primary party to protect the IP would be the IP owner/s.
We have argued the case in this thread so it’s up to them to decide how best to proceed (if at all).
Good point @Daimon that a legal opinion letter should not be for public consumption as it would also point out the weakness in the potential case.
I do think the DAO vote should be if Curve should obtain an opinion letter, but I think the leadership would have to make the call on if they want to burden/opportunity of pursuing any legal action. (Legal action could be as simple as a cease and desist letter. The opinion letter would likely discuss several options.)
@michwill is the founder of Curve and creator of the stableswap invariant. If this is true that the IP rights are with him, and the DAO doesn’t have claim to the IP, then the DAO is really a bystander in this situation.
This seems reasonable, given that the DAO can’t take direct action anyways
I think this is now well summarised. In short does the IP owner wish to assess and/or act? Certainly a practicing lawyer could help in this regard.
There is a wider question - and that is does Curve wish to manage its IP and intangible assets going forward. This is where IP consultants come in to help companies with the practical side of using, creating and managing intangibles in a business. Certainly I am such a consultant and would be happy to help but of course there are other IP consultants one could use too. Good IP consultants will have previously developed, used, managed and commercialised a wide range of complex innovative intangibles within businesses on an international scale.
So yes consider action and the benefits of taking it but more importantly consider how to run the business for optimal benefit in line with your corporate goals.
This will also set an important precedent in DAO’s and DeFi that decentralization does not mean that VC’s get to steal from communities.
this is really good idea.
I do agree with @hydrosam , and there are valid points to protect Curve IP. And i think it is a right direction. However, we need to discuss how we going to implement the IP rights we have in the past and future.
So the proposal i have is
legal due diligence will be long. And this proposal will lose validity. Only my opinion, but It all makes a lot of sense
This has been quite a discussion and I’d like to thank everyone for their positive input (even those who oppose Curve asserting any IP rights at all).
As I see it, the first step is to bring some more clarity to the exact state of Curve’s IP. Who owns it? What is it? What agreements already exist which affect it (i.e. licenses from others, OSS licenses, etc)?
That inquiry is challenging on a forum as @Daimon has ably pointed out on this forum and others have pointed out in discussions on Twitter because of concerns related to maintaining attorney client privilege and not hurting Curve’s position should litigation become necessary.
I’ve given this quite some thought and discussed with some other lawyers in the field. As such, I have the following proposal:
Those of you who have engaged with me online can readily see that lawyering is not my day job. Nevertheless I’m a member of the bar in the State of Florida and maintain the legal structure of a law firm for various activities. As such, while aggressive civil litigation is not my forte, I can at least protect conversations between myself and client(s) and myself and other attorneys associated for a matter behind the veil of privilege.
However, to do so, people have to be one’s client. As far as I’ve been able to discern from the other lawyers online who have engaged in this matter, none of them seem interested in taking on a group of clients who aren’t 100% identified and who aren’t likely to pay.
Within certain constraints related to the scope of services, I am.
My proposal would be that the DAO would encourage the leadership of Curve and any related persons to jointly agree to be represented by my mini law firm just for the purposes of reviewing documents and doing confidential interviews and creation of a confidential memo outlining the state of the IP involved in Curve. This memo could be shared confidentially with other firms in the future who might consider representing Curve in litigation or other matters to help Curve defend its rights, but almost certainly could not be shared publicly. It’s a long way from a lawsuit, but it would be a solid start.
So I’ve posted a draft of what the representation agreement might be here: https://drive.google.com/file/d/17ndOwzWyX1pRhirshHCxW0fovmW0f9qR/view?usp=sharing your comments are welcome, but just know some parts of the language are mandated by Florida Bar rules (or strongly recommended by various administrative decisions). Obviously the DAO can’t force any of the Curve leadership to join up, it would be up to them (presumably guided by DAO perspectives at least) to individually decide to participate. If they won’t (either with me or some other), then this probably cannot go forward.
My understanding of the rules of the Florida Bar are that I’m not generally allowed to advance a client costs, but I am allowed to make my fee contingent. This is going to take a lot of work, and I can only guess as to whether Curve DAO might think that work is worthy of compensation in the future. As such, I’ll track my time, and when it’s done, I’ll present it as a grant request like any other. If Curve DAO approves, cool. If not, at least it will have been an interesting project for me personally and professionally.
Finally, I’d like to open this up: are you a lawyer who thinks you’d do a better job? If so, please post your offer (I might even support it over my own!) Are you a lawyer who thinks I’ll need help and wants to associate to make my one-man firm a duo for this project? Post!
I won’t be able to represent Curve in any US proceedings obviously but I can still help review your analysis from an IP perspective and implement the strategy I proposed earlier if you want to team up on this.
The advisory tasks and pre-litigation remediation (sending cease and desists, contacting various third parties) shouldn’t be done on a contingency basis - that’s solid work that benefits Curve (assuming the IP owners reveal themselves and agree to proceed).
I do have some questions about the retainer as it appears to make each client jointly liable for the legal fees incurred by the class. Maybe someone out there with deep pockets will sign that. I can’t. The retainer also appears to be contingent only on whether the DAO approves payment - 2 obvious problems come to mind: (i) that type of contingency is unusual and from my quick review of the Florida Bar Rules, doesn’t appear to be a legitimate basis for contingency; and (ii) the retainer is silent on who is liable for fees after the DAO approves payment. It begs the obvious question - why are the individual clients liable for payment at all if the DAO is going to pay?
If you’re representing a class of Curve investors (or the DAO itself, in whatever legal form it is represented by), it would make more sense for the fees to be payable via grant request. The request should also flush out whether there is any support from the leadership team at Curve.
I’d like to see clear milestones and estimates in the fee structure. On this, a rough estimate could be Stage 1: 6-8 hours to get instructions from the Curve team and dig into the IP position of the infringer, Stage 2: about 4-6 hours to research and prepare an advice with the options (as I’m the client here, I’m expecting a short, punchy advice), Stage 3: an average of 2-3 hours per third party to get instructions, investigate best approach and issue the various cease and desist letters as well as any corro with the third party requesting closure of the infringer’s accounts. Stage 4: Assuming we require litigation, estimates get harder to develop because there are more variables. Happy to hear your thoughts on this.
Getting back to the main hurdle here because I understand that Curve is many things to many people and some folk must be scratching their heads at this thread. There are those who believe that Curve (and other community focused DeFi platforms) is a grand social experiment, an anarcho-syndicalist takeover of traditional finance. It may well be. There are others who view Curve as little more than a speculative investment. Or simply a highly sophisticated web of bytecode modules moving magic money about. It’s all those things. But it’s also, let’s not forget, a business. And the business of Curve requires some old-school leadership and grit.
Where is that?
Thanks for the valuable feedback. One alternative could be that the clients would not be liable at all for the fees and have a notice that the fees are being paid by a third party with a reference to a DAO grant application (which would have to have been approved, though not necessarily disbursed, prior to executing any of the retainers).
I generally think your estimates on number of hours makes sense, but I see the ordering slightly different:
I currently assume it may be that the options advised in your Stage 2 (my #3) require/recommend some act (i.e. assignment of rights to some sort of a corp/trust/foundation/etc.) prior to going to your Stage 3. My proposal would be to finish the immediate work at that point and separate any work after the recommendations (whether it’s incorporation, direct to C&D letters, or something else) into a separate phase of the initiative. That may be something I would be willing to do, or it might be something that is best handled by someone else, or it might be that by then Curve in general has more offers from other lawyers which are more attractive.
Would be very happy to have your collaboration - DM me on Twitter? @sammiorelli
The proposed document has been updated on my google drive to reflect the changed compensation idea proposed by @Daimon.
Is there any progress on this topic/proposal?
I think we got our answer: https://www.rekt.news/curve-wars/
rekt:
They’ve decided to use your competitor, Saddle Finance.
What are your thoughts about Saddle?
Michael:
That was a totally different thing than wallet white list
Was a soft vote for listing in ui. DAO participants were in hesitation about listing alETH because collateral dumps CRV.
I expressed the opinion that listing is good in such case anyway. But due to that slowness they went with Saddle.
And alEth also got rekt few days later.
But in principle if it is safe, no problem to list again, they had an ops issue.
As for Saddle, Saddle I think violates curve.fi ip because it literally translates code from Vyper to Solidity.
It can be proven in court but I think it is such a worthless project that it doesn’t make sense to do so.
In addition, a litigation there would hurt the founders of Saddle but not the VCs who propelled it.
So probably even less of a point there.
rekt:
Robert Leshner said
”If you want courts and politicians to protect and control you, there is “finance”. If you want a system that is resilient, self sufficient, open, and upgradable, there is DeFi.”
Do you think litigation has a place in decentralised finance?
Michael:
I think it is quite possible as long as there is a legal entity who can do litigation against another legal entity. There is one for both curve.fi and saddle.
But strange to hear it this way from Robert.
Compound was suing dForce iirc when they cloned their 1st version.
That’s a bit like saying that Compound is not DeFi.
But anyway. I don’t like the idea of suing saddle for other reasons.
Maybe it would be good to continue this discussion from a defensive perspective. Setting Saddle aside, how can Curve lay the foundation to protect itself against legal situations that may come our way eventually? There was a great discussion on Laura Shin’s podcast about Curve and the legal status of DAOs, I’ll just drop some quotes by Aaron Wright that are particularly salient.
“If Curve was organized as a wrapped DAO [rooted in a legal entity] in some capacity…, if they wanted to walk into court, it would be a lot easier for them to do that. If they wanted to get tax ID numbers and start paying taxes, they could normalize and grow to something that’s not on the back waters of the internet, but really front and center and prominent in the mainstream. They have an avenue and a path to do that"
“We can stay as an insular community, but if you believe in this vision that blockchain technology, Ethereum, Bitcoin, at some point is the norm, is mainstream, you cannot avoid that traditional players are gonna need to participate and play around with these structures. So at some point it’s gonna need to be sort out… It’s not gonna be an insular bubble forever. At some point the gravitas of the ecosystem will become large enough that it’s going to pull in the rest of the world, and it’s going to need some of these legal protections to do that.”
“In structures that don’t have a legal backing in some sort of way, they will likely be viewed as partnerships. The way partnership law tends to work is that partners have to account for each other if there’s some sort of damage. And your liability for any damage that’s been caused is not limited. So that means the deepest pocket is going to be responsible for it. So if some of the venture capital funds that have backed some of these projects want to participate in governance, if folks who have deep pockets because they’ve acquired a number of digital assets over the years want to participate in DAOs, they can definitely do it, and I’m sure that many of them will not run into issues, but some will get knotted up in nasty situations involving a DAO that isn’t organized, that doesn’t have any limited liability protection, and they’ll be on the hook for it… If you have a lot of assets, if you’re a mature player, if you’re a traditional player, you’re not likely to want to participate in these Dao structures until you have the certainty of the limitation of liability, until you have the certainty of legal recognition.”
I would point out how DASH (altcoin) protects their global network
The issue is not the underlying regulation of security but one of fairness. Michael has made it clear that he encourages competition but who was it that front-run the initial CRV tokens to amass the low-hanging fruit? What are the things that irks me are
Collaborate on the protocols, compete on the UX and ease of use. Michael wants competition, but it should be civil (no line-jumping), participatory (not just take and make out) and fair (more than copycat) competition
This. Continuous innovation.
Don’t worry about the others. Stay ahead and win.