Interview with Matcher and Conservancy Board member Allison Randal

by Karen Sandler on January 11, 2021

A generous group of individuals has banded together to increase the amount of our match donation. This post is part of a series of interviews where these extraordinary folks tell us about why they care about software freedom and why they support Conservancy.

Allison Randal has had a variety of roles in software freedom, including development, project leadership, strategy, and advocacy. She collaborates in the Debian project, and is currently taking a mid-career break to get a PhD at the University of Cambridge.

Q: How did you first get interested in software freedom?

A: I was working as a linguist in eastern Africa in the 90s, and using free software tools (especially Perl) for language data analysis. From there, I kind of fell backwards into taking a job as a Perl developer, teaching Perl at a local Linux user group, and then joining the Perl project first as a developer and programming language designer, and later as a board member and president of the foundation.

Q: Can you talk a little about why copyleft and copyleft enforcement matters?

A: Copyleft is an important tool in protecting and defending software freedom, and without enforcement that tool would weaken and dull over time.

Q: Do you have a favorite Conservancy member project?

A: It's impossible to pick just one favorite project. The one I use most frequently is git, unsurprisingly. :) I suspect a lot of people who use git every day don't even realize it is a Conservancy member project. Another is coreboot, since my development work in recent years has drifted more and more into open firmware and open hardware. Another is Outreachy, because its approach to diversity and inclusion has helped so many people find their start in software freedom.

Q: You have served on the boards of many important free software related organizations and have somewhat recently joined Conservancy's board. Why did you join Conservancy's board?

A: I've been a supporter of Conservancy for many years, and was always interested to do more. My past experiences as a board member have made that a role where my unique skills and volunteer time can serve Conservancy's mission and member projects.

Q: Why do you think people should contribute to Conservancy?

A:Doing a little good for the world is a great antidote for 2020, and contributing to Conservancy is one great little good you can do quickly and easily.

[permalink]

Tags: supporter

Ethical Employment Contracts Instead of Ethical Licenses?

by Karen Sandler on December 17, 2020

Earlier in the year at Copyleft Conf, we had a few sessions dedicated to the Ethical License movement. During the conference, Coraline Ada Ehmke gave a moving talk outlining why technologists and software freedom activists in particular must act against atrocities, especially those committed using FOSS. I have long argued that technologists (and especially software freedom activists) should dedicate more care and resources to the ethical use of technology and eliminating discrimination and oppression that technology often enables. While I don't believe software licenses are the best way to accomplish this task, I've wondered since the conference what FOSS contributors can do to protect human rights.

The proposed licenses have been essential to starting these discussions, but the license changes themselves seem unlikely to work: they'd introduce nonfree provisions, introduce license uncertainty and on top of that, we know that companies that would commit atrocities will ignore licenses and act from judgement-proof jurisdictions. So the question is how best to influence the behavior of companies who can improve their human rights record and how to insulate employees who want to take action to assure that their companies do the right thing.

Through our ContractPatch[1] initiative, Conservancy has been working to educate developers about employment contracts. We plan to eventually draft suggested contract language to help developers negotiate their employment contracts. While ContractPatch has moved slower than I would have liked (due to our prioritization of other urgent work), the initiative has shared good information, primarily via our talks and blogposts. I've been gratified to hear from folks that they've actually been able to negotiate better terms into their employment agreements as a result! Some have told us that they've succeeded in retaining their FOSS copyrights. Others have simply negotiated a better salary, as ContractPatch information improved their negotiation skills generally.

In the context of human rights, where FOSS licenses are unlikely to achieve the desired result, perhaps contractual demands by developers can succeed. I propose here a simple “contract patch” that can more successfully leverage developers' power in the market to prevent human rights abuses due to software.

Employees of all sorts face a difficult dilemma upon discovering unethical practices at their company. If the activity is already in advanced stages and/or the profit amounts generated from the practice are high, the employee's predicament becomes even more precarious. Should they report it to their manager or their manager's manager? If those managers all know about the activity already, will a complaint even be taken seriously? Often, the employee will have signed documents upon employment committing them to confidentiality, so the employee has little choice except to decide whether to quit or not but otherwise remain silent. For matters that concern the safety and well being of human beings, the stakes are much higher. Yet, employees have even fewer choices to ameliorate the situation. While most companies have whistle blower policies, the fallout of corporate politics can leave employees powerless.

What if those employees knew exactly how to handle the situation? What if the steps to escalate this situation were spelled out in advance? What if the employee were truly assured non-retaliation for reporting the situation? What if the employee were guaranteed a soft landing if they felt they needed to quit their job when the company took no action? In other words, what if these details appeared in their employment agreement and the employee knew they could rely on it from day one of their employment?

Amending Employment Contracts

With this in mind, we can draft a clause for employment contracts. Should an employee come to know that the company is committing violations of human rights, their employment agreement can specify the ways they can raise attention to this matter. Perhaps they first report the violation to their manager. If there is no satisfactory response or repair of the situation within a certain period of time, then the employee is to report the violation their manager's manager. If again there is no satisfactory response or action, the employee is to report the violation to the head of the department. If in that instance there is again no satisfactory response or action, the employee may post the violation on an internal mailing list or posting board. If again no action is taken, the employee may choose to terminate their employment and receive a pre-agreed severance amount — similar to the “golden parachute” provisions that executives have in their contracts. The company would also promise no retaliation against the employee for reporting the violation, including a non-disparagement provision that prevents the company from speaking negatively about an employee who opts for the severance. Each company could tailor the reporting chain to match what would make the most sense with their corporate structure. Nothing in the provision would undermine the company's confidentiality provisions with the employee, but the employee would have confidence in raising an alarm and also be able to quit while having a cushion to be able to look for another job.

Like most ContractPatch proposals, these approaches works best when the clause becomes standard. Companies are more likely to agree to these terms if many developers who interview ask for it.

This is a relatively simple solution — a good set of ContractPatch terms and a collective bargaining demand around it — is an outcome that companies can actually accept when the terms are reasonable. It protects the company's confidentiality and incentivizes employees to bring to management's attention problematic practices that the companies should have an interest in knowing about. Additionally, while the company and employee may disagree about the human rights implications of a problematic behavior, the ultimate negative result of the provision's operations is that the employee leaves the company, with a small, pre-agreed and easily budgeted financial settlement. In the case the employee is simply wrong about the alleged human rights violation, a voluntary exit is an obvious benefit to both parties. However, if multiple employees exercise this contract clause, the company then has a strong incentive to cease the violations, both financially and operationally. Alone one employee may not effectuate change, but standing together employees can have a powerful voice. Adding contract provisions like this one work within the existing corporate structure but amplify the impact that employees can have.

While I've focused my example on human rights violations, the provision could also cover endangering public health and safety or substantially violating the law.

The ContractPatch

Employment contracts often have provisions where the employee represents that they will obey laws and act ethically in the position. Here's an example of this kind of language I've seen in a contract:

Employee will act in an honest and ethical manner in compliance with all applicable laws … and comply with the policies, procedures, requirements, rules, and regulations promulgated at any time and as amended or supplemented from time to time by Employer … including Employer’s policies on sexual harassment …

Employment agreements are already the correct venue for these expectations. We can build on provisions like this to introduce the one I'm proposing here. The language itself could look like this:

“Human Rights Laws”) is defined as the United Nations Universal Declaration of Human Rights and any other applicable laws protecting the rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

An “Unethical Action” is defined as an action by Company that violates Human Rights Laws, excluding actions Company has taken against the Employee individually.

An “Adequate Response” is defined as a written response that (a) explains why there has been no Unethical Action, or (b) provides notice that the Unethical Action has ceased.

A “Planning Response” is defined as a written response that sets forth a plan to cease the Unethical Action.

Company shall act in an honest and ethical manner in compliance with all Human Rights Laws.

In the case that Employee becomes aware of any Unethical Action, Employee will report such action to their manager in writing as soon as is reasonably practicable. If Employee's manager does not provide an Adequate Response or a Planning Response within two weeks, Employee will send the report to their [FIXME - manager's manager/department head]. If [FIXME-title] does not provide an Adequate Response or a Planning Response within two weeks, Employee may report the Unethical Action via [FIXME - whatever relevant internal company-wide dissemination makes sense, whether it be an email list, posting board] (“Company Notice&Rdquo;). Employee may also provide a Company Notice in the case that the Employee has received a Planning Response but no Adequate Response is received within the period set forth for repair in the Planning Response. If the Employee receives no Adequate Response or Planning Response to a Company Notice within two weeks, Employee may terminate their employment and receive an amount equal to the greater of (i) twelve (12) weeks severance pay or (ii) twice the amount required by any relevant applicable law or statute. Company will not retaliate, intimidate or harass any Employee who reports an Unethical Action. If Employee's employment is terminated for any reason after Employee first reported the Unethical Action, Employee shall receive an amount equal to twelve (12) weeks severance pay. Nothing in this provision contradicts, supersedes or diminishes Section [FIXME-CONFIDENTIALITY] of this agreement. However, if Employee terminates their employment pursuant to this provision, Company will not engage in any disparagement of the professional or personal life of the Employee.

This text is a first draft and edits and suggestions are welcome on the Contract Patch mailing list .

No software developer expects to encounter human rights violations or unlawful activity using software when they take a new job. But history shows that it will and does happen; Coraline's talk is an excellent list of known examples. Introducing new clauses into employment contracts is a practical way to align the interest of all parties, while providing simple mechanisms to raise attention to and end problematic behavior. Developers usually have more bargaining power than most workers. Let's use that to make sure we compel our employers to behave ethically and provide us the safety to stop providing them with our services if they don't!

[1] While I'm a lawyer and many of the people who have worked on ContractPatch are lawyers, Conservancy doesn't provide legal advice and so ContractPatch isn't meant as legal advice. Please use the language as a starting point or as an example for you to work on with your own lawyer to figure out what works for your situation.

Software Freedom Conservancy is in the middle of its annual fundraiser. Please help us continue our work by becoming a Supporter. Donate now and have your donation matched by a group of generous individuals who care deeply about software freedom.

[permalink]

Tags: ContractPatch

In free software, you're not alone. Starting today, we're scheduling time to chat.

by Karen Sandler on March 12, 2020

Given the drastic reduction of travel, cancellation of in-person FOSS events and the many, many folks in the community who are working remotely for the first time, some of us are understandably feeling a little isolated. We at Conservancy know that community is a huge part of software freedom and luckily we already know how to come together remotely.

And so, I'd like to officially invite you to come hang out with Conservancy *virtually*!

Our IRC channel #conservancy on freenode.net is often an active meeting place, where folks already congregate for interesting conversation. Everyone is invited to join that conversation at any time. Starting this week, some of us at Conservancy will make sure to be around on Thursday afternoons at 2pm Eastern/6pm UTC to chat with anyone who is interested. The #conservancy channel is accessible via your IRC client. If you don't already use an IRC client, you can come in through your browser. Just visit this page, and choose a nick (or nickname) and you'll be "in channel."

Folks in the channel often discuss software freedom advocacy, the challenges of maintaining free software, new gadgets and free software licenses and other practical strategies to advance the cause. On Thursday afternoons, no special topic is necessary! Come for advice on remote work, thoughts about events that may or may not be cancelled, post jobs, find a friend for virtual proofreading, or just chit-chat about The Good Place [1].

I feel so grateful for the free software community, which I think of as my free software family. It's incredibly comforting to know so many people who are passionate about software freedom, and bringing justice and ethics to the technology that pervades our daily lives. We are building solutions to big problems that we can only do by bringing people together from all over the world and all walks of life to collaborate. One of the key sustaining characteristics of this is a strong social network we've formed in the process. When you are involved with free software, you have friends across continents and across time zones. We'll get through this crisis by supporting each other. See you in IRC!

[1] As always, please be mindful that the folks who are part of our global community different levels of comfort with sexual or religious topics. The channel is moderated and we won't allow anyone to be harassed or subjected to topics that are way outside of appropriate quasi-professional conversation.

[permalink]

Tags: conservancy, software freedom for everyone

ContractPatch: Supporting Maintainers in Employment Agreements

by Karen Sandler on December 19, 2019

Since we've launched ContractPatch, I've heard a lot of feedback from free software contributors about the successes they've had in negotiating their employment agreements. While not everyone has achieved full modification to the agreement, so far everyone who's reported back had a positive experience negotiating and many have been able to introduce improvements into their contracts. As we've mentioned before, generally employers won't give you something unless you ask for it and generally agreements are negotiable. As a developer or other contributor, you often know what your FOSS project needs better than your employer does even though they may depend on that project.

Recently, I was discussing this with a CEO of a company that (like many) depend on free and open source software for their business to succeed and he was kind enough to send me an example of one of the free software specific provisions that they included in their contract with an employee. The employee is a developer who maintains an important project, and was its maintainer even before the company's founding. This provision gave the employee confidence that they could continue their work for the project. Furthermore, this provision clearly demonstrates the company's commitment to support the project.

This part of the contract says:

For 10 hours each week, you will be free to continue your work as the [PROJECT] maintainer. The tasks you work on will be at your discretion, and you will hold the copyright to that work, so long as it is released under [COPYLEFT LICENSE]. For the remaining 30 hours per week, you will work at the direction of [COMPANY].

While the provision could certainly go farther in favor of the employee¹, this provision clearly declares the intention of the company with respect to the employment relationship. The employee gets to choose how best to maintain and improve the free software project unfettered by the needs of their employer and also knows how much time is reasonable for them to use during work hours. Additionally, the provision allows the employee to keep their copyrights, which given the copyleft license, empowers the employee going forward and underscores the company's intention to stay in compliance with its license obligations. This provision is strong, but the contract could also address a procedure or process for how to handle a situation where the interests of the company and the interests of the project conflict. For example,they could also include a term that indicates the employee should mark the contributions during those 10 hours in some way, such as by using a personal address in all those Git commits. There are a range of provisions that employees already have in their contracts to help their free software work, this is just one example of a provision that is in effect for an employee right now.

Many free software contributors take jobs with the unwritten understanding that they will be able to continue working on their long-time free software projects. As Bradley quoted from the old telephone commercials on our FaiF episode that announced ContractPatch: “put it in writing!”. Without having that written agreement with their employers, employees find later that expectations can change. Managers change; companies get acquired; and, sometimes, what's promised on the interview just never turns out as expected! Often higher level management understands the importance of having an employee working on the free software projects that the company needs, but shifts in middle management can easily break that focus. Employees then may not feel comfortable escalating the problem. Ultimately, that results in decreased employee satisfaction and allows short-term quarterly goals of the company to take precedence over the free software projects that the company needs for long-term profitability. Explicitly giving the “freedom to FOSS” in employment contracts both provides long term benefits to all parties and brings sustainability to FOSS.

---

¹ For example, the employee in question sometimes spends more than 10 hours on behalf of the project and has considerable leeway to exercise their judgement for the process in the course of their employment

[permalink]

Tags: ContractPatch