proposed agreement with the Software Freedom Conservancy

> Hi all--
>
>      Following a suggestion from Ron Teitelbaum, the elected Squeak
> leadership is considering making Squeak a member project in the Software
> Freedom Law Center's Software Freedom Conservancy[1, 2]. Here's the
> Conservancy's description of themselves from their website:
>
> ***
>
>      The Software Freedom Conservancy is an organization composed of
> Free and Open Source Software (FOSS) projects. As a fiscal sponsor for
> FOSS projects, the Conservancy provides member projects with free
> financial and administrative services, but does not involve itself with
> technological and artistic decisions.
>
>      By joining the Conservancy, member FOSS projects obtain the
> benefits of a formal legal structure while keeping themselves focused on
> software development. These benefits include, most notably, protection
> from personal liability for project developers. Another benefit of
> joining the Conservancy is that projects can use it to hold assets,
> which are managed by the Conservancy on behalf of and at the direction
> of the project. The Conservancy is a tax-exempt 501(c)(3) organization,
> so member projects can receive tax-deductible donations to the extent
> allowed by law.
>
> ***
>
>      Our discussions with them have gone very well, and we now have a
> proposed membership agreement (for now, at [3]). The Squeak leadership
> is unanimously in favor of it.
>
>      Please read this agreement and voice any concerns with it here on
> squeak-dev.
>
>      We currently plan to take action on 15 August 2007.
>
>
>      thanks!
>
> -C
>
> [1] http://www.softwarefreedom.org
> [2] http://conservancy.softwarefreedom.org
> [3] http://netjam.org/squeak/SqueakSponsorshipAgreement.pdf
>
> --
> Craig Latta
> improvisational musical informaticist
> www.netjam.org
> Smalltalkers do: [:it | All with: Class, (And love: it)]
>
>
>

> -----Original Message-----
> From: Craig Latta
>
> Hi all--
>
>      Following a suggestion from Ron Teitelbaum, the elected Squeak
> leadership is considering making Squeak a member project in the Software
> Freedom Law Center's Software Freedom Conservancy[1, 2]. Here's the
> Conservancy's description of themselves from their website:
>
> ***
>
>      The Software Freedom Conservancy is an organization composed of
> Free and Open Source Software (FOSS) projects. As a fiscal sponsor for
> FOSS projects, the Conservancy provides member projects with free
> financial and administrative services, but does not involve itself with
> technological and artistic decisions.
>
>      By joining the Conservancy, member FOSS projects obtain the
> benefits of a formal legal structure while keeping themselves focused on
> software development. These benefits include, most notably, protection
> from personal liability for project developers. Another benefit of
> joining the Conservancy is that projects can use it to hold assets,
> which are managed by the Conservancy on behalf of and at the direction
> of the project. The Conservancy is a tax-exempt 501(c)(3) organization,
> so member projects can receive tax-deductible donations to the extent
> allowed by law.
>
> ***
>
>      Our discussions with them have gone very well, and we now have a
> proposed membership agreement (for now, at [3]). The Squeak leadership
> is unanimously in favor of it.
>
>      Please read this agreement and voice any concerns with it here on
> squeak-dev.
>
>      We currently plan to take action on 15 August 2007.
>
>
>      thanks!
>
> -C
>
> [1] http://www.softwarefreedom.org
> [2] http://conservancy.softwarefreedom.org
> [3] http://netjam.org/squeak/SqueakSponsorshipAgreement.pdf
>
> --
> Craig Latta
> improvisational musical informaticist
> www.netjam.org
> Smalltalkers do: [:it | All with: Class, (And love: it)]
>

> > [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.

> 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."

> > 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?

> > 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.

> > 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.

> -----Original Message-----
> From: [hidden email] [mailto:squeak-dev-
> [hidden email]] On Behalf Of Craig Latta
> Sent: Tuesday, August 14, 2007 8:27 PM
> To: [hidden email]
> Subject: re: proposed agreement with the Software Freedom Conservancy
>
>
> Hi Brad--
>
> > > 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.
> >
> > They may have verbally said that...
>
>      They said it in writing, too, via recital C and paragraph 2b.
>
> > ...but that's not what they are saying in this section. They are
> > clearly stating they retain the supreme right to spend the
> > funds solely in their own judgement. It doesn't say they will spend
> > the funds in concert and in collaboration with the Project's
> > directors.
> >
> > What I'm saying is that it's advertised on the web that the Converancy
> > is at the direction of the Project, but the contract clearly states
> > the opposite.
>
>      Brad, we disagree; I'm sorry. Furthermore, the agreement cannot be
> reworded and still comply with US tax law. I am convinced that our
> choices are to sign this agreement (whether with SFC or some other
> entity), incorporate independently, or do nothing. We simply don't have
> the time available to execute and maintain incorporation, and doing
> nothing will leave us without access to tax-exempt donations. So, I
> think we should do this. If we decide to incorporate later, we can.
>
>
>      thanks again,
>
> -C
>
> --
> Craig Latta
> improvisational musical informaticist
> www.netjam.org
> Smalltalkers do: [:it | All with: Class, (And love: it)]
>

> Hi Brad--
>
> > > 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.
> >
> > They may have verbally said that...
>
>      They said it in writing, too, via recital C and paragraph 2b.
>
> > ...but that's not what they are saying in this section. They are
> > clearly stating they retain the supreme right to spend the
> > funds solely in their own judgement. It doesn't say they will spend
> > the funds in concert and in collaboration with the Project's
> > directors.
> >
> > What I'm saying is that it's advertised on the web that the Converancy
> > is at the direction of the Project, but the contract clearly states
> > the opposite.
>
>      Brad, we disagree; I'm sorry. Furthermore, the agreement cannot be
> reworded and still comply with US tax law. I am convinced that our
> choices are to sign this agreement (whether with SFC or some other
> entity), incorporate independently, or do nothing. We simply don't have
> the time available to execute and maintain incorporation, and doing
> nothing will leave us without access to tax-exempt donations. So, I
> think we should do this.

> 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)]
>
>
>