proposed agreement with the Software Freedom Conservancy

Craig Latta craig at netjam.org
Tue Aug 14 23:27:20 UTC 2007


Hi all--

     Thanks for the feedback! In this message I address the issues
raised by Andreas Raab, Brad Fuller, and Ron Teitelbaum.

***

     Andreas Raab writes:

> The draft agreement refers to "Free Software" in paragraph 2a which is
> later used to specify that "The Conservancy will only intervene in the
> program activities to the extent the Project is not in compliance with
> Paragraph 2(a) or Paragraph 5 of this Agreement". Do you know if the
> Software Freedom Conservancy is okay with Squeak-L as "Free Software"
> (which is not OSI Open Source(tm) compliant) or whether that makes it
> dependent on a license change?

     I've spoken with them about our effort[1] to move to an MIT-style
license. They understand that we'll be using the original Squeak license
until we finish sorting things out, and that's okay with them.

> In particular, would it mean that if the SqF supports activities that
> use Squeak-L it would trigger the above clause?

     No.

***

     Brad Fuller writes:

> I've been out for a couple of weeks so I didn't see any posting about
> the SFC before. Has there been?

     Yes, on 3 July 2007 (see [2]).

> It's an interesting move. Maintaining a non-profit, filing tax forms
> each years, (etc) can be a pain. Nice to have someone else do it, as
> long as the focus is on Squeak and not SFC.

     I'm confident that's how it'll be.

> > [From recital B:] The Committee desires to manage the Project under
> > the sponsorship of the Conservancy.
>
> Maybe it should read "The Committee desires the Conservancy to manage
> the Project's funds under the sponsorship of the Conservancy.".
>
> Less ambiguous, we don't want them to manage Squeak. Especially since
> [recital] A defines the purpose of the Project to produce and
> distribute free software and [paragraph] 2b states that Squeak is
> responsible for the technical and artistic direction.

     The Conservancy suggests adding the following sentence to recital
C: "The Conservancy expects to make such expenditures at the direction
of the Project in the ordinary course of the Project's operations."

     So, the entire recital C would read: "The Conservancy's Board of
Directors  has approved the establishment of a fund to receive donations
of cash and other property earmarked for support of the Project and to
make  disbursements in furtherance of the Project’s mission (the
“Project  Fund”). The Conservancy expects to make such expenditures at
the direction of the Project in the ordinary course of the Project's
operations.Currently, the principal office of the Project is located at
[Craig's mailing address]."

     I think this addresses the issue.

> > 2b. "Authority to manage the technical and artistic direction of the
> > Project and the program activities of the Project is delegated to
> > the Committee, subject at all times to the direction and control of
> > the Conservancy's Board of Directors. The Conservancy will only
> > intervene in the program activities to the extent the Project is not
> > in compliance with Paragraph 2(a) or Paragraph 5 of this Agreement."
>
> Why would the Conservancy's Board be in total control of the direction
> of Squeak?

     They have to have that authority in order to maintain their
tax-exempt status. True, this involves some risk on our part. I think
it's worth doing, though. From my conversations with them, and my
research about their goals and other member projects, I trust them. We
can always terminate the agreement if things go really wrong.

> Why does the conservancy have the power to approve the distribution of
> the money for Squeak?

     Again, they have to have that power in order to satisfy the US IRS.
This is apparently to prevent situations like a member project using
funds to aid political campaigns.

> For instance, this is troubling: "... The Conservancy retains the
> unilateral right to spend such funds so as to accomplish the purposes
> of the Project as nearly as possible within the Conservancy's sole
> judgment..."
>
> And, it doesn't jive with their website which states:
>
> "any monies received by a project are put in a separate Conservancy
> fund and maintained there until the project directs the Conservancy to
> do something with the funds."

     I don't see a conflict there. They are only saying that, while they
will spend money at the direction of the project, they must, by law,
have final authority on how the money is spent. The Squeak leadership
already asked them about this specifically.

> Can Squeak, with non-profit status, be its own successor?

     Yes.

> I always try to move the area to California. It's much more expensive
> to deal out-of-state (you have to find an attorney that can practice
> in that state, etc.)

     Certainly worth a shot, but the Conservancy insists that the
governing law be that of New York.

> Finally, have you reviewed other entities that offer services like
> SFC? Have you spoken with the Samba or the Wine teams about their
> experience with SFC?

     No, I'm afraid we simply don't have the available time. Frankly,
though, I'm already convinced that working with this group will be a
good thing. I'm especially compelled by the strength of their team[3]
and their roster of existing member projects.

***

     Ron Teitelbaum writes:

> > 2b. The Committee Will Manage the Project. Authority to manage the
> > technical and artistic direction of the Project and the program
> > activities of the Project is delegated to the Committee, subject at
> > all times to the direction and control of the Conservancy's Board of
> > Directors. The Conservancy will only intervene in the program
> > activities to the extent the Project is not in compliance with
> > Paragraph 2(a) or Paragraph 5 of this Agreement.
>
> The period (.) after Directors should be changed to a colon (:)

     The folks who do the legalese at the Conservancy don't agree.

> > 2c. Ultimate Responsibility of Project. Subject to Section 2(b) of
> > this Agreement, all community programs, public information work,
> > fundraising events, processing and acknowledgment of cash and
> > noncash revenue items, accounts payable and receivable, negotiation
> > of leases and contracts, disbursement of Project funds (including
> > grants), and other activities planned by the Project shall be the
> > ultimate responsibility of the Conservancy and shall be conducted in
> > the name of the Conservancy, beginning on the Effective Date.
>
> ...Does this mean for example that fundraising can not use the name
> Squeak?

     No.

> Or is the intention only to make sure that the Software Freedom
> Conservancy is associated with all fundraising activities.

     Yes; in particular, we need to keep them appraised of the
fundraising that we do, so that they know that we're behaving
appropriately (e.g., not supporting political candidates).

> So for example could we have a Squeak Conference, as long as we note
> on the materials that proceeds are directed to the Software Freedom
> Conservancy?

     Exactly, people would donate to the Squeak project in care of the
Software Freedom Conservancy, and our donation materials would have the
usual boilerplate stating that the SFC is a tax-exempt organization
("The Software Freedom Conservancy is a 501(c)(3) organization, and
donations made to it are fully tax-deductible to the extent permitted by
law.").

> > 4. Project Fund/Variance Power. Beginning on the Effective Date, the
> > Conservancy shall place all gifts, grants, contributions and other
> > revenues received by the Conservancy and identified with the Project
> > into a Project Fund to be used for the sole benefit of the Project's
> > mission as that mission may be defined by the Committee from time to
> > time with the approval of the Conservancy...
>
> Add: as defined in Paragraph 2b.

     The Conservancy doesn't think that's necessary.

> > 6. Representation of the Project in the Conservancy. The Directors,
> > each a signatory hereto, shall represent the Project in its official
> > capacity with the Conservancy. There shall be seven Directors,
> > elected by the community members of the Project listed on the
> > Project's website at http://people.squeakfoundation.org/person/ who
> > have a achieved the title Apprentice, Journeyer or Master (the
> > "Community Members").
>
> Add: The election is conducted by the Squeak Elections Team.  The
> Elections Team is assembled of members of the community, each member
> selected by the Elections Team Leader who is appointed by a majority
> of the Directors.
>
> > Each Director shall continue to serve until he or she resigns from
> > the position. [The Directors may be removed from the position at any
> > time by a majority vote of the Community Members.] Upon the
> > resignation or removal of a Director, the Community Members shall...
>
> Remove "shall", add "may".
>
> > ...elect a replacement Director to serve on the Committee.
>
> Add: at the discretion of the Squeak Elections Team Leader based on
> the considered impact to the community and the duration of time to
> serve before the next Director election.
>
> > The Committee will elect [a single/two] individual[s] to communicate
> > with the Conservancy (the "Representative") and shall notify the
> > Conservancy promptly following the election of a new Representative.
> > The Representative will have the authority to instruct the
> > Conservancy on the Project's behalf on all matters.

     Unlike most of the rest of the agreement (which has to satisfy the
Conservancy's various legal obligations), we do get to specify the
details in this section. I think your first two suggestions here are
fine. I don't like the third, although it raises a good point: the
community-wide elections are very labor-intensive. Upon further
reflection, I'd rather the remaining Directors decided on replacements
themselves. If the community doesn't like the replacements, they can
change as many of the Directors as they like at the next election.

     Election/replacement details may be something more appropriately
addressed in a set of "Squeak project bylaws", to which the Conservancy
agreement merely refers by URL. What we have now came from a board
meeting with a representative from the Conservancy (who then wrote the
paragraph). I've sent another message to the Conservancy asking about this.

> > 8d. Termination Without a Successor. If no Successor is found, the
> > Conservancy may...
>
> Add: , with written agreement between the Conservancy and the
> Directors,
>
> > ...dispose of the Project assets and liabilities in any manner
> > consistent with applicable tax and charitable trust laws.

     The Conservancy thinks this isn't feasible (due to legal
obligations) and unnecessary anyway. I agree; if anyone cares enough to
want that authority, I'd think they'd care enough to set up a successor
organization.

> Nice job all!

     Thanks!


-C

[1] http://squeak.org/SqueakLicense
[2] http://tinyurl.com/3y8kuc (lists.squeakfoundation.org)
[3] http://www.softwarefreedom.org/about/team


--
Craig Latta
improvisational musical informaticist
www.netjam.org
Smalltalkers do: [:it | All with: Class, (And love: it)]




More information about the Squeak-dev mailing list