Conservancy Now Developing Our Corporate Policies in Public via DVCS
byon June 30, 2014
Everything Conservancy does comes back to our charitable mission: to promote, improve, develop, and defend FLOSS. Our member projects are well-known — and rightly so — for developing of some of the best freely-licensed software available today. And, we have a responsibility to match our projects' standard of excellence in all other aspects of the organization. For example, we have prioritized developing a FLOSS application for non-profit accounting, with the goal of developing a first-rate solution that can benefit the entire non-profit community.
As such, when one of our volunteer software developers recommends that we publish our corporate policies in a public repository, we listen. Earlier this month, Conservancy transitioned to developing our corporate policies in public via a distributed version control system (DVCS). Conservancy's conflict of interest policy, document retention policy, travel and expense policy, and whistle-blower policy are now available for inspection in a public Git repository1.
We believe that developing our corporate policies in public via DVCS will have several benefits. For one, we're now working in a format immediately familiar to the software developers who contribute to our member projects. We expect that our policies will get more attention from a wider pool of volunteers, which will result in greater buy-in and fewer misunderstandings about policy interpretation. We also expect to receive more suggestions — in the form of patches or merge requests — that will result in stronger, better-written corporate policies.
We also expect and welcome input from the public at large. Conservancy's policies will be maintained by Conservancy's Board, who will have final say over all changes to our policies; however, we look forward to receiving comments, suggestions, and "bug reports" from anyone interested in non-profit corporate governance — as it relates to FLOSS or in general.
As a publicly-funded charity, Conservancy also has a responsibility to our donors and to the public at large to strive for transparency whenever possible. Now, as an attorney, I've been trained to always prefer keeping my cards close. However, I believe that our donors will appreciate that our policies are available for public inspection, and that we are therefore committed to holding ourselves publicly accountable to the standards we've articulated.
Lastly, we're pleased to announced that all of Conservancy's policies in the repository are now dedicated to the public domain under the Creative Commons CC0 license. We encourage our fellow charitable organizations to review and adopt some or all of our policies as they see fit.
So, we invite you to visit our corporate policies repository and review our policies. Scrutinize them, critique them, and submit merge requests. Treat it like a FLOSS project, roll up your sleeves, and get involved. We look forward to working with any and all contributors on strengthening the policies that help us pursue our charitable mission.
1Conservancy is the non-profit home for three DVCS projects: Darcs, Mercurial, and Git. We love all of our member projects equally, but we felt that hosting our policies on all three platforms simultaneously would be overkill. We had to pick one.
Why Your Project Doesn't Need a Contributor Licensing Agreement
byon June 9, 2014
For nearly a decade, a battle has raged between two distinct camps regarding something called Contributor Licensing Agreements (CLAs). In my personal capacity, I've written extensively on the issue. This article below is a summary on the basics of why CLA's aren't necessary, and on Conservancy's typical recommendations to its projects regarding the issue.
In the most general sense, a CLA is a formal legal contract between a contributor to a FLOSS project and the “project” itself0. Ostensibly, this agreement seeks to assure the project, and/or its governing legal entity, has the appropriate permissions to incorporate contributed patches, changes, and/or improvements to the software and then distribute the resulting larger work.
In practice, most CLAs in use today are (at best) overkill for that purpose. CLAs simply shift legal blame for any patent infringement, copyright infringement, or other bad acts from the project (or its legal entity) back onto its contributors. Meanwhile, since vetting every contribution for copyright and/or patent infringement is time-consuming and expensive, no existing organization actually does that work. Thus, no one knows (in the general case) if the contributors' assurances in the CLA are valid. Indeed, since it's so difficult to determine if a given work of software infringes a patent, it's highly likely that any contributor submitting a patent-infringing patch did so inadvertently and without any knowledge that the patent even existed — even regarding patents controlled by their own company1.
The undeniable benefit to CLAs relates to contributions from for-profit companies who likely do hold patents that read on the software. It's useful to receive from such companies (whenever possible) a patent license for any patents exercised in making, using or selling the FLOSS containing that company's contributions. I agree that such an assurance is nice to have, and I might consider supporting CLAs if there was no other cost associated with using them. However, maintenance of CLA-assent records requires massive administrative overhead.
More importantly, CLAs require the first interaction between a FLOSS project and a new contributor to involve a complex legal negotiation and a formal legal agreement. CLAs twist the empowering, community-oriented, enjoyable experience of FLOSS contribution into an annoying exercise in pointless bureaucracy, which (if handled properly) requires a business-like, grating haggle between necessarily adverse parties. And, that's the best possible outcome. Admittedly, few contributors actually bother to negotiate about the CLA. CLAs frankly rely on our “Don't Read & Click ‘Agree’” culture — thereby tricking contributors into bearing legal risk. FLOSS project leaders shouldn't rely on “gotcha” fine print like car salespeople.
Thus, I encourage those considering a CLA to look past the “nice assurances we'd like to have — all things being equal” and focus on the “what legal assurances our FLOSS project actually needs to assure its thrives”. We at Conservancy have spent years doing that analysis; we concluded quite simply: in this regard, all a project and its legal home actually need is a clear statement and/or assent from the contributor that they offer the contribution under the project's known FLOSS license. Long ago, the now famous Open Source lawyer Richard Fontana dubbed this legal policy with the name “inbound=outbound”. It's a powerful concept that shows clearly the redundancy of CLAs.
Most importantly, “inbound=outbound” makes a strong and correct statement about the FLOSS license the project chooses. FLOSS licenses must contain all the legal terms that are necessary for a project to thrive. If the project is unwilling to accept (inbound) contribution of code under the terms of the license it chose, that's a clear indication that the project's (outbound) license has serious deficiencies that require immediate remedy. This is precisely why Conservancy advises2 that our projects select a FLOSS license with a strong patent clause, such as the GPLv3 or the Apache License, Version 2.0. With a license like those, Conservancy believes that CLAs are unnecessary.
Meanwhile, the issue of requesting the contributors' assent to the projects' license is orthogonal to the issue of CLAs. Conservancy does encourage use of clear systems (either formal or informal) for that purpose. One popular option is called the Developer Certificate of Origin (DCO). Originally designed for the Linux project and published by the OSDL under the CC-By-SA license, the DCO is a mechanism to assure contributors have confirmed their right to license their contribution under the project's license. Typically, developers indicate their agreement to the DCO with a specially-formed tag in their DVCS commit log. Conservancy's Evergreen, phpMyAdmin, and Samba projects all use modified versions of the DCO.
Conservancy's Selenium project uses a license assent mechanism somewhat closer to a formal CLA. In this method, the contributors must complete a special online form wherein they formally assent to the license of the project. The project keeps careful records of all assents separately from the code repository itself. This mechanism is a bit heavy-weight, but ultimately simply formally implements the same inbound=outbound concept.
However, most Conservancy projects use the same time-honored and successful mechanism used throughout the 35 year history of the Free Software community. Simply, they publish clearly in their developer documentation and/or other key places (such as mailing list subscription notices) that submissions using the normal means to contribute to the project — such as patches to the mailing list or pull and merge requests — indicate the contributors' assent for inclusion of that software in the canonical version under the project's license.
Ultimately, CLAs are much ado about nothing. Lawyers are trained to zealously represent their clients, and as such they often seek to an outcome that maximizes leverage of clients' legal rights, but they typically ignore the other important benefits that are outside of their profession. The most ardent supporters of CLAs have yet to experience first-hand the arduous daily work required to manage a queue of incoming FLOSS contributions. Those of us who have done the latter easily see that avoiding additional barriers to entry is paramount. While a beautifully crafted CLA — jam-packed with legalese that artfully shifts all the blame off to the contributors — may make some corporate attorneys smile, but I've never seen such bring anything but a frown and a sigh from FLOSS developers.
0Only rarely does an unincorporated, unaffiliated project request CLAs. Typically, CLAs name a corporate entity — a non-profit charity (like Conservancy), a trade association (like OpenStack Foundation), or a for-profit company, as its ultimate beneficiary. On rare occasions, the beneficiary of a CLA is a single individual developer.
1I've yet to meet any FLOSS developer who has read their own employer's entire patent portfolio.
2Conservancy doesn't mandate any specific Open Source and Free Software license for our projects. That's just not our style. Any license that appears as both an Open Source license on the OSI-approved list and as a Free Software license on FSF's license list is good enough for Conservancy.
The Change in My Role at Conservancy
byon March 31, 2014
Today, Conservancy announced the addition of Karen Sandler to our management team. This addition to Conservancy's staff will greatly improve Conservancy's ability to help Conservancy's many member projects.
This outcome is one I've been working towards for a long time. I've focused for at least a year on fundraising for Conservancy in hopes that we could hire a third full-time staffer. For the last few years, I've been doing basically two full-time jobs, since I've needed to give my personal attention to virtually everything Conservancy does. This obviously doesn't scale, so my focus has been on increasing capacity at Conservancy to serve more projects better.
I (and the entire Board of Directors of Conservancy) have often worried if I were to disappear, leave Conservancy (or otherwise just drop dead), Conservancy might not survive without me. Such heavy reliance on one person is a bug, not a feature, in an organization. That's why I worked so hard to recruit Karen Sandler as Conservancy's new Executive Director. Admittedly, she helped create Conservancy and has been involved since its inception. But, having her full-time on staff is a great step forward: there's no single point of failure anymore.
It's somewhat difficult for me to relinquish some of my personal control over Conservancy. I have been mostly responsible for building Conservancy from a small unstaffed “thin” fiscal sponsor into a “full-service” fiscal sponsor that provides virtually any work that a Free Software project requests. Much of that has been thanks to my work, and it's tough to let someone else take that over.
However, handing off the Executive Director position to Karen specifically made this transition easy. Put simply, I trust Karen, and I recruited her personally to take over (one of) my job(s). She really believes in software freedom in the way that I do, and she's taught me at least half the things I know about non-profit organizational management. We've collaborated on so many projects and have been friends and colleagues — through both rough and easy times — for nearly a decade. While I think I'm justified in saying I did a pretty good job as Conservancy's Executive Director, Karen will do an even better job than I did.
I'm not stepping aside completely from Conservancy management, though. I'm continuing in the role of President and I remain on the Board of Directors. I'll be involved with all strategic decisions for the organization, and I'll be the primary manager for a few of Conservancy's program activities: including at least the non-profit accounting project and Conservancy's license enforcement activities. My primary staff role, however, will now be under the title “Distinguished Technologist” — a title we borrowed from HP. The basic idea behind this job at Conservancy is that my day-to-day work helps the organization understand the technology of Free Software and how it relates to Conservancy's work. As an initial matter, I suspect that my focus for the next few years is going to be the non-profit accounting project, since that's the most urgent place where Free Software is inadequately providing technological solutions for Conservancy's work. (Now, more than ever, I urge you to donate to that campaign, since it will become a major component of funding my day-to-day work. :)
I'm somewhat surprised that, even in the six hours since this announcement, I've already received emails from Conservancy member project representatives worded as if they expect they won't hear from me anymore. While, indeed, I'll cease to be the front-line contact person for issues related to Conservancy's work, Conservancy and its operations will remain my focus. Karen and I plan a collaborative management style for the organization, so I suspect for many things, Karen will brief me about what's going on and will seek my input. That said, I'm looking forward to a time very soon when most Conservancy management decisions won't primarily be mine anymore. I'm grateful for Karen, as I know that the two of us running Conservancy together will make a great working environment for both of us, and I really believe that she and I as a management team are greater than the sum of our parts.
byon March 31, 2014
Working as the GNOME Foundation Executive Director has been one of the highlights of my career. It has been a pleasure to work with many wonderful people, and we have made fantastic progress over the past three years. GNOME is such an important, vibrant project, and I feel lucky to have been able to play a part in it.
I think I have made some important contributions to the project while I have been Executive Director. I've helped to recruit two new advisory board members, and we recently received a one time donation of considerable size (the donor did not want to be identified). Financially the Foundation is in good shape, and we have run the last three years in the black. We've held some successful funding campaigns, particularly around privacy and accessibility. We have a mind-blowingly fantastic Board of Directors, and the Engagement team is doing amazing work. The GNOME.Asia team is strong, and we've got an influx of people, more so than I've seen in some time.
I hope that I have helped us to get in touch with our values during my time as ED, and I think that GNOME is more aware of its guiding mission than ever before. The ongoing success of the Outreach Program for Women and positive relations with other organizations fighting for software freedom have all helped us to tell a powerful story about who we are and why we matter.
With all these achievements, I think it's time for me to hand the reins over to someone new, who can bring their own personal strengths to the role. It is time for a new challenge for me also, so today I am announcing my new position as the Software Freedom Conservancy Executive Director. As many of you know, I have been volunteering with Conservancy for some time, since I helped found it when I was a lawyer at SFLC. I also can't wait to work closer with Bradley, who has done a bang up job in the role of ED thus far (he’ll be taking on the title of Distinguished Technologist while remaining as President and on the board). It is an important organization where I think I can make a difference, and GNOME is in good hands.
Don't worry though: I'm not leaving GNOME. I will be announcing my candidacy for the board when the call comes out (this is a real exception for me as I've generally declined serving on boards). I will stay on as pro bono counsel, and of course I'll continue volunteering in other ways. The Conservancy has also agreed to partner with GNOME, so that I can help to run the Outreach Program for Women with Marina.
I'm excited for the future. GNOME is already in great hands and I look forward to what the next Foundation Executive can bring to the table. If you know of someone who would be fantastic in this position please let the GNOME board know! I am incredibly proud of what we have achieved in the past three years, and can't wait to see where we go next.