April 3, 2006

Software Freedom Law Center has a legal umbrella for FOSS projects

Author: Joe 'Zonker' Brockmeier

The Software Freedom Law Center (SFLC) is today launching the Software Freedom Conservancy (SFC), a project that will make it easier for free and open source (FOSS) projects to receive free financial and legal services, and to enjoy non-profit status.

Why a Conservancy? Dan Ravicher, legal director of the SFLC, says that one of the first things that the law center recommends for projects is to form a corporate entity. After working with several projects, it became apparent that the SFLC was duplicating effort. "We've been helping a lot of clients form corporations and to achieve non-profit status, and we said, 'We've been doing this over and over again, how can we make it simpler?'" Instead of each project filing for non-profit status on its own, they will be able to operate under the umbrella of the Conservancy.

At launch, Ravicher says that the SFC will represent only a handful of projects, but he wouldn't be surprised if the SFC had "a dozen or two" projects under its umbrella within a year or so. At launch, Ravicher said that BusyBox, uClibc, and SurveyOS would be part of the Conservancy, and that the Wine Project was also considering joining.

What the Conservancy offers

The Conservancy will act as a corporation for projects, and provide a way for projects to accept donations under non-profit status. Projects receive a "substantial benefit" to doing things as a corporation, according to Ravicher. For one thing, incorporation provides protection from personal liability. If a project were to be sued for patent infringement, for example, a company could go after only the assets of the corporation, and not the assets of the individuals who contribute to the project.

At this time, the Conservancy does not have 501(c)3 non-profit status, but Ravicher says that it is in the process of applying. As soon as that status is granted to the Conservancy, it will apply to all projects under its umbrella. Ravicher noted that it's much more likely that people will be willing to donate to a corporation than to individual developers for FOSS projects.

Rob Landley, the maintainer of BusyBox, says that his project was already working with the SFLC to try to deal with companies that are violating the GNU General Public License (GPL) by incorporating BusyBox code without adhering to the GPL.

Landley says that BusyBox isn't terribly interested in the financial aspect of the Conservancy. "As for the rest of it, we don't really care that they can maintain a bank account for us because we haven't got any money and aren't looking for any."

But dealing with the GPL violations had been a major problem for BusyBox. "We simply outgrew our in-house enforcement efforts... so I did the obvious thing and emailed Pamela Jones of Groklaw to see if she had any suggestions. She immediately knew we needed professional help and put us in touch with the SFLC guys, and the rest is history."

In the process of trying to enforce the GPL, the question of representation came up -- exactly who would the SFLC be representing? Since BusyBox had no corporate structure, it was confusing legally. "It does have advantages for the SFLC because they're clearer on who they're representing. Our first phone conversation with them was confusing. They wanted to know who they were representing."

Landley also noted that "if we have lawyers suing people on our behalf then it's nice for them to be able to represent us in any countersuits as well," something that is also made easier by being part of the Conservancy -- though not required.

According to Landley, "A project can be a member of things like SourceForge or the SFLC Conservancy, and get services from them that are way better than trying to do things themselves. But claiming ownership of a volunteer project is likely to smother it, so we didn't want a corporation to 'own' BusyBox or uClibc."

No strings attached

Ravicher says that projects using the Conservancy will not be charged any fees or percentage of donations that it handles, and that projects are free to leave at any time. He stressed that clients of the SFLC are not under any obligation to join the Conservancy, and he says that membership can be a jumping off point for projects that may eventually spin off into their own non-profit corporation.

The only major stipulation attached is that projects may not use funds donated through the Conservancy for any purpose that would violate its non-profit status -- for example, using money for political purposes.

Other than that, Ravicher says that the projects are free to operate as before. The copyrights for code stay with a project, though Ravicher says that the SFLC is willing to help consolidate copyrights, and "projects are free to come and go out of the conservancy as they wish. No fees, no lock-in, if you want to leave, you can."

So how will the SFLC handle costs associated with running the Conservancy? Ravicher says that the costs are not that great. "The work of the Conservancy is done by lawyers at the Law Center, the Conservancy doesn't have separate employees.... It's a couple of hundred dollars for filing fees, the Law Center picks that up." As for income for the SFLC, Ravicher says that the center does its own fund raising, so it's not something that projects need to worry about.

Landley says he likes the fact that it's easy to leave the Conservancy, if a developer wishes to do so. "As long as they [developers] can get out of it, there's not much downside from signing up. As long as there's an escape hatch, you only have upsides."

Who can participate?

It's not particularly difficult to become part of the Conservancy. Ravicher says that "any FOSS project that is willing to commit in writing to staying a FOSS project" is eligible. "The process of joining is to contact us and discuss any issues they may have, and then just write up an agreement between the project and the Conservancy."

At that point a project would need to establish what member or members are "allowed to tell us what to do with their stuff," says Ravicher. "Like a bank account. Who is allowed to sign checks, how we get direction from them."

Landley says that the people at the SFLC are a "cool bunch of lawyers, which is not something you get to say every day."

"We're joining the conservancy because we trust them, because it makes it easier for them to represent us to enforce our license, and because it was very little work for us to do."

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