Conservancy Proposal

Summary Below is proposal by Eben Moglen, legal counsel for the FSF (Free Software Foundation). The basic idea is simple: o Contributors assign the IP of the contribution. o The Plone Foundation provides a grant-back under the GPL. o The Plone Foundation could choose to self-fund by a separate, commercial license. This is the *conservancy* model. The Plone Foundation board feels this is the best starting point for discussion on Plone's IP and would like to work with the FSF to make Plone a good example of the conservancy approach. Construction and Licensing for Non-Profit Free Software Stewardships (Note: this is the text from a post by Eben Moglen to the Plone Foundation's IP committee list.) Taking a free software project to a mature organizational and legal structure can feel like a big step: what has often been a loose social system held together by shared technical enthusiasm becomes something more formal and apparently inflexible. But a good legal and organizational strategy is like good internal debugging tools and sound documentation policy: an investment in future enhancements and extensions. A number of questions arise about the process that you are designing, and it makes sense to separate them into input and output stages: your project as an organization both acquires and distributes code and other works of authorship. Understanding the relationship of those stages then follows more easily. On the input side, does your project act as a conservator or a publisher? Conservators--museums, libraries, archives, and other similar organizations---take permanent care of the works entrusted to them. Publishers arrange the public distribution of others' works. Conservators need legal power to protect what is in their charge: you should expect the conservator to hold assignments of copyright. Under US copyright law mere licensees have no power to enforce copyrights. Publishers acquire works under license permitting redistribution. The two positions outlined are not the only possibilities, but they represent functional definitions of positions frequently occupied. FSF is the conservator of much of the GNU Project; Linus Torvalds and the other central developers have been the publishers of the kernel, Linux. In general, where a project already consists of a strong community accustomed to working together, the conservator approach seems to me preferable. Where developers are not uncomfortable about managing their copyrights through a political arrangement within the conservation trust, the assignment system produces a single maximally-defensible copyright, a clear authority to enforce license compliance, and a single responsible party with whom downstream users and distributors can deal over legal issues. In order to make the conservancy structure work, assignments should return a license to the collective work under appropriate free software terms, so that each contributor retains a power to distribute the work freely. For this purpose, a copyleft license such as GPL can be used for the license-back, thus assuring that the conservancy can engage in dual licensing, while contributors can be assured that there will always be a fully free version that will not compete against any dual-licensed version. Note, however, that if code is assigned that has been published under or includes GPL'd code, the output project can only be licensed under GPL, and is not subject to dual licensing, unless *all* copyright holders in the GPL'd code have assigned. The Plone Case In the particular case of Plone, it seems to me that the conservancy model straightforwardly applies. The conservancy can support itself by dual licensing if all code is assigned, and if a GPL-grantback to the entire work is afforded to all external assignors. The result is a Plone Foundation that can enforce copyright on all portions of the code and docs, is responsible for registration and recording, etc. All assignors know that their and all code will stay free forever; those who want to use the code in proprietary products can get royalty-bearing license from the Foundation. Note also that if copyright is assigned to the Foundation, tax benefits may accrue to assignors.