Displaying posts by Tony Sebro
How the TC Heartland decision helps free and open source software
byon May 23, 2017
Yesterday, the United States Supreme Court published a decision that is likely to make it harder for patent holders to use frivolous infringement lawsuits to extort settlement fees. In the TC Heartland LLC v. Kraft Foods Group Brands LLC case, the Court ruled that patent holders can only file suit in the jurisdiction where the alleged infringer is incorporated. Prior to TC Heartland, US patent holders had more flexibility to file suit in multiple jurisdictions, and as a result would often select seemingly unrelated jurisdictions for strategic reasons.
The Eastern District Court in Texas is, by far, the most popular venue in the United States for patent holders to file suit, due to its reputation for plaintiff-friendly judges and aggressively brisk (and, therefore, cheaper) litigation schedules. The United States federal court system has ninety four district courts, yet over a third of all patent litigations filed in the United States in the first quarter of 2017 were filed in the Eastern District. And, traditionally, the overwhelming majority of such cases filed in the Eastern District have been brought by non-practicing entities ("NPEs"; unaffectionately known as "patent trolls") — patent holders who enforce patents without being engaged in the business of selling the inventions disclosed in the patents. The media has covered the remarkable growth of a cottage industry centered around patent litigation in Marshall, Texas, the small town where the Eastern District is located. Many NPEs have built their business models around the economies of scale and efficiencies of pushing frivolous suits through this single venue. Hopefully, the fresh burden of having to file suit on a defendant's "home turf" will reduce the volume of nuisance patent litigation — and disrupt the business models that fund it.
As a public charity, Conservancy is not a traditional target for NPEs: we don't generate the kind of product-related revenue streams that NPEs typically hold for ransom in exchange for quick settlement payments. That said, we acknowledge that the threat of NPE litigation casts a shadow on the entire technology sector, including on free and open source communities. We believe that community-vetted free and open source licenses are sufficient to create a pool of explicit and/or implied patent licenses between contributors and users. But, that hasn't stopped many a nervous in-house counsel from using layers of extraneous paperwork to reduce the patent exposure they think participating in a free and open source software project may create. We hope that the TC Heartland decision sends a signal to would-be NPEs that the US judiciary will no longer be as complicit in facilitating nuisance patent litigation. We also hope that software developers and users of all types are encouraged by the decision, and are less likely to allow fear, uncertainty, and doubt around NPE patent exposure chill their participation in free and open source software communities.
Helping Our Member Projects Raise Money
byon January 10, 2017
Conservancy member projects depend on contributions from both individual and institutional donors to cover code sprint and conference expenses, pay for hosting services and hardware purchases, and fund strategic software development. Once a project joins Conservancy, Conservancy’s staff takes over the day-to-day responsibility of managing every donation directed to that project. In addition, we sit down with our projects’ leadership committees and help them execute fundraising strategies that go beyond posting a Conservancy-managed PayPal link on the project’s website. Here are some of the common fundraising initiatives Conservancy member projects use:
Conservancy’s status as a 501(c)(3) public charity enables our member projects to qualify for grants from foundations and other philanthropic donors who want the financial transparency and mission-centric focus public charities are required to have by US law. In 2016, Conservancy enabled member projects Bro, Buildbot, and Godot to receive grants from the Mozilla Foundation’s Mozilla Open Source Support (MOSS) program. Our member projects are using the grant funds to add new features, improve documentation, and add support for critical web standards.
Walter Bender helps teach a child at Turtle Art Day.
Conservancy helped Sugar get a grant to fund the event.
Photo by Nalin Tutiyaphuengprasert Tukta under CC BY-SA 2.0
We also successfully helped member project Sugar Labs secure a grant from the TripAdvisor Charitable Foundation to fund the translation and internationalization of Sugar for use in locales around the world. Sugar Labs has also used the grant to fund Turtle Art Days — mini-conferences where developers and students meet to discuss and share “Turtle Art”.
Member Project Sponsorships
Several of Conservancy’s member projects — including Outreachy, phpMyAdmin, and Selenium — use sponsorship programs administered by Conservancy to raise money. Outreachy’s sponsorship program provides the funding for people from groups underrepresented in free and open source software to work as interns with participating free and open source software communities and organizations. phpMyAdmin’s sponsorship program helps fund contractors to work on security maintenance, bug fixing, and code base improvement. Selenium’s sponsorship program helps cover project infrastructure costs and developer travel to project-related events; it also provides financial support for Selenium’s official conferences.
Sponsorship programs allow us and our projects to publicly acknowledge the financial support we receive from corporate donors. Corporations who support our member projects appreciate these acknowledgments, and we’ve enjoyed the opportunity to build relationships with repeat donors who gladly renew their sponsorship over the years.
Projects often seek to raise money to fund strategic development. A project may want to fund a developer to focus on implementing a new feature, or on solving a particularly difficult problem. In other cases, projects notice that their volunteer contributors have gravitated towards contributing to more glamorous, bleeding edge parts of the code base — meaning the core can use a little more love. Conservancy helps a member project’s leadership committee draft a fundraising proposal describing the tasks they’d like to accomplish, and the budget needed to accomplish those tasks. Projects publish their final proposals in the form of fundraising campaigns.
Conservancy manages the donations generated from these campaigns, and works with our projects to spend the funds in a manner consistent with their campaigns’ stated goals and Conservancy’s nonprofit mandate.
Conservancy member project Inkscape launched a funded development program that will enable any interested community member to organize his or her own campaign to raise funds to complete items on an Inkscape-maintained “jobs list”. Community members can propose their own items to be added to the list. If a campaign organizer is able to raise sufficient funds for a particular item, Inkscape will then use the funds to retain contract software developers to complete the task.
Inkscape’s program is designed to broaden the pool of community members engaged in job list creation and in fundraising. It’s a novel approach for a Conservancy project, and we’re excited to work with Inkscape and see how the user and developer communities respond.
Affiliate Programs and More
Conservancy has helped our member projects raise funds in lots of other ways. We accept donations via eBay’s Giving Works program (which allows eBay sellers to donate portions of their sales proceeds to registered charities), and Amazon’s Associates program (as seen in links on the Git and Twisted project websites) — just to name a few. We work with our projects to identify and vet new fundraising platforms, and we’re willing to consider virtually any strategy that doesn’t run counter to our organizational mission or IRS rules.
Volunteers (and Donors) Wanted
If you’d like to contribute to Conservancy and/or one of our member projects in ways other than by software development, we could always use volunteers to help out with fundraising. Feel free to contact us with any fundraising ideas you may have; we’d be happy to start a dialogue. If you would like to support our member projects financially, visit the member project website of your choice and follow the instructions to donate. Conservancy will process the donation on our project’s behalf.
And, of course, Conservancy needs your help as well. We rely on the public’s donations to provide these and other critical services that help our member projects flourish. So, if you would like to contribute Conservancy — and all of our member projects at once — become a Conservancy Supporter today!
ContractPatch, Step 3: It's never too late
byon November 30, 2016
We understand that we may lose a little credibility with the other side when we look backwards. We're reluctant to break the psychological bond we formed when we reached agreement — even if that agreement was communicated by little more than silent assent. We worry that we look sloppy and unprepared, since we had a chance to bring up whatever concerns we had the first time we discussed that point, and we didn't.
Employees in particular can feel that way about the agreements they signed with their employer.
As Karen stated in our last entry, people likely will never have as much power over their employer as they do the moment just before they sign their employment agreement. I certainly agree, and we would all be wise to use that leverage as best we can while we have it. But what about the rest of us, who have already signed that agreement? All is not lost. Despite what our psychology tells us, it's never too late to go back to the negotiation table with your employer.
The stakes and the power dynamic are different, to be sure. From the employer's perspective, a recruit with a job offer in hand is potential personified; whereas an employee has an actual performance record and history of relationships — and, of course, a demonstrated willingness to work for the employer at the terms they already agreed to.
So, perhaps you're in a situation where you have some regrets about the employment agreement you signed. Or, perhaps you're up for a promotion, or a transfer, or some other change in job duties. Or, perhaps your priorities have changed, and you'd like to adjust where you're willing to give and to get accordingly. You should consider at least two factors when deciding how best to proceed.
Factor #1: is the juice worth the squeeze?
While it's certainly possible to renegotiate an employment agreement, every employee should recognize that the subtle cost of doing so is real. Your employer is presumably fine with the status quo, and you'll be asking them to spend time and/or resources considering your requests. As a threshold matter, you should be candid with yourself about the stability of that status quo: the cost of attempting to renegotiate might be much higher if your position with your employer is shaky than if you're a rising star. In addition, changes in responsibilities and/or title may afford you a unique opportunity to reconsider the terms of your employment.
You should also do your best to determine what others in comparable positions receive from their respective employers. Market data will give you a better sense of what your employer might be willing to concede in a renegotiation. Obtaining this data isn't always an easy task: salary benchmarking for various industries is generally available on the web, but information about industry practices regarding other terms of employment is harder to come by. One of our long-term goals with ContractPatch is to gather and present information that enables both employees and employers in the tech sector to efficiently negotiate better employment agreements.
Lastly, you should compare the value you place on each of your requests to their cost to your employer. Employers usually manage their employees' salaries closely, so a straight-forward request for a raise is usually a zero-sum game: more money for you, less remaining in the employer's budget for something else. But it might be harder to quantify the employer's cost for other requests — particularly if they relate to more non-monetary requests like ownership of copyrights in your work, flexibility to pursue and contribute to extra-curricular activities, etc. You'll likely need to rely on your understanding of your employer's culture and business model to estimate the cost (if any) your employer would incur to grant those non-monetary requests.
Obviously, the easiest renegotiations are the ones where you're confident in your standing with your employer, you value your requests a great deal, your requests are in-line with industry practices, and you think your employer will incur minimal costs in granting them. And, of course, context matters: an employer who has given you a promotion but who doesn't have the budget to give you a commensurate salary bump is likely to treat non-monetary requests differently than an employer who has just backed up the Brinks truck for you. Your risk/reward calculus will depend on your assessment — and will go a long way in determining when and how to reopen discussions with your employer.
Factor #2: what does your existing employment agreement say about it?
I know this should go without saying. But many an employee has signed their employment agreement without fully understanding all of the terms they've agreed to. So, as you consider whether to renegotiate your agreement, make sure you're familiar with the existing agreement. If you don't have a copy handy, you should request a copy from your employer to have on file.
Once you've reviewed your existing agreement, compare the current language with your wish list of requests. In particular, you should know whether your requests would require actual amendments, or if you're merely looking to clarify vague or even seemingly contradictory language.
So, if you have a firm grasp on your current employment agreement and how you'd like to see it changed — and if you're comfortable that obtaining some or all of those changes is worth the risk — you're ready to start renegotiating. If your assessments are accurate, you might be surprised as to what your employer is willing to concede the second time around.
Over the course of this series, we'll start to drill down into specific subject areas commonly covered (sometimes expertly, other times poorly) in employment agreements for employees in the tech sector. If there are particular topics you'd like us to cover, you can sign up for our mailing list and offer suggestions. We look forward to continuing the conversation.
ContractPatch, Step 2: Understanding the power balance
byon September 26, 2016
Employment agreements are one of the things that I'm asked the most regularly about in the free and open source software world, almost rivaling questions about licenses. My responses have always been the usual lawyerly responses of This Is Not Legal Advice and while I Am A Lawyer, I Am Not Your Lawyer (I'm generally not acting as a lawyer on behalf of Conservancy as its Executive Director either). But even from my early days of being involved with free software, I have seen that there's a lack of understanding about employment agreements and the ability of employees to get their agreements modified. Last month, Fred announced a new initiative that we are working on together, called ContractPatch. With ContractPatch, our goal is to help provide knowledge to employees, along with sample language for better contract terms. The first step in this process is understanding the dynamics at work in employment arrangements. Step 1 is knowing that everything is negotiable and step 2 is knowing where you stand in the negotiation. Quite simply, you likely will never have as much power as you do the moment just before you sign your employment agreement.
At the point you are presented with a job offer, your prospective employer really wants to hire you. Chances are, they've screened and interviewed a number of candidates and put a lot of work into the process. Your manager has thought deeply about who they want in the position and has probably imagined how it will all work out with you in the role. Both you and the hiring decision-maker(s) are probably very optimistic about what you'll accomplish in the role and how well you'll get along working together. At this point, no one wants to go back to the drawing board and start the process over again. You will be excited to start the new job but it's worth taking a step back to appreciate the unusual position you are in with your new employer.
As part of the hiring process, you'll be expected to negotiate your salary (this can be complicated) and finalize all of the terms of your employment. Terms of employment can also be looked at through the lens of compensation, and asking for more favorable terms in your employment contract can be another kind of perk an employer can give you if they have a tight budget. A classic contract negotiation tactic (I even learned this in law school) is to make an agreement stronger in the first draft than you really need it to be, just so that you can give something away when pushed. This is certainly true of many company's standard agreement templates. The only way to find out is to ask.
Once you take the job, it's harder to change your terms of employment (though it's possible, as we'll cover later). Think hard about the long term impact of signing the agreement and whether things could happen down the road that would make you feel less comfortable with working under those terms. We'll be giving you some examples of situations you want to be prepared for when we talk about specific contract provisions.
Asking for more favorable terms doesn't have to be an adversarial process. You can ask for an agreement to be amended in a friendly way. Employers often respect workers more when they advocate for themselves.
So, we'll help you think about how to engage with your employer while anticipating things that could go wrong down the road and how to ask for more favorable terms. You can sign up for our mailing list to be part of the conversation. While it may be easier to avoid negotiating your agreement, don't trade short term comfort for your long term benefit.