I'm in favor of this plan. Just out of curiosity - who would be representing the Evergreen project in the Conservancy? Is it the entire governance committee or specific individuals?
Kathy Lussier ------------------------------------------------------------- Kathy Lussier Project Coordinator Massachusetts Library Network Cooperative (508) 756-0172 (508) 755-3721 (fax) [email protected] IM: kmlussier (AOL & Yahoo) Twitter: http://www.twitter.com/kmlussier > -----Original Message----- > From: [email protected] > [mailto:[email protected]] > On Behalf Of Lori Bowen Ayre > Sent: Wednesday, November 10, 2010 11:52 AM > To: Evergreen Discussion Group > Cc: [email protected] > Subject: Re: [OPEN-ILS-GENERAL] Details of fiscal sponsorship > agreement for Evergreen & Conservancy > > I am in favor of moving forward with the Software Freedom > Conservancy membership to protect our Evergreen assets under > their umbrella 501(c)3. I suggest we appoint an interim > contact person (or two). > > Over all of our discussions in the Governance Committee, I > have seen nothing but benefit from this approach. If there > are any drawbacks to using the SFC, this needs to be brought > to our attention now. > > I would love to hear from others to ensure we have community > buy-in. Just a "hear hear" or a ++ would be nice so we know > people are aware of the plan. > > If there are no objections (and even if no one responds > affirmatively) I think we should feel free to move forward > with membership in the SFC at the next opportunity. > > Lori Ayre > > > On Wed, Nov 10, 2010 at 8:24 AM, Dan Scott <[email protected]> wrote: > > > The Conservancy has added one new member organization since we > received the draft agreement, and it's not us! > (http://sfconservancy.org/news/2010/nov/10/pypy-joins/). > > Based on the lack of comments, I'm wondering if anyone > has looked at > the Software Freedom Conservancy draft agreement that I > posted to the > open-ils-general list on October 21? At the time, I had > suggested that > we try to collect a list of questions together by > October 28th, a date > that has come and gone. > > On the governance list, we've been doing some > soul-searching about > whether to establish a small, focused foundation or a very broad > foundation. In principle, I'm not opposed to a foundation that > includes a users' group, various committees, membership > fees, etc, but > I worry that getting it right will take a long time - > and when dealing > with a scope that broad, I would much rather get things > right and take > a long time, than get things done fast but fatally flawed at the > outset. > > However, we don't have to exist in the mean time > without the benefit > of being part of a 501(c)(3); based on the draft agreement, the > relationship with the Conservancy can be as lightweight > as a temporary > home that we can leave in 60 days if another 501(c)(3) > can receive the > assets. I've checked with Bradley Kuhn to ensure that > would be okay, > and he said "I really don't get why people don't just > use as that: > Keep debating the other issues while having a > Conservancy membership, > and even move in forming the new org in parallel." > > So, based on that, would it be possible to move forward on the > governance front in two tracks? > > 1) Short-term (e.g. next month?): establish an > agreement with the > Conservancy that enables us to take advantage of the > benefits of being > part of a 501(c)(3) and provides a neutral place for holding the > Evergreen collateral (trademarks, logos, domain > names...). We would > work directly with the Conservancy to establish the > ground rules for > our agreement (as Bradley offered when he sent us the > sponsorship > agreement - and which we have not as of yet used). > Some projects > simply nominate one person to act as the point of > contact with the > Conservancy; it could be as simple as that. If we get > set up before > the end of year, then Americans would be able to make tax-free > donations to Evergreen as a Christmas present! > > 2) Longer-term (e.g. in time for the next Evergreen Conference): > establish the complete set of rules of governance, > including standing > committees, membership rules & fees, meeting rules, > compensation, > possibly setting up a standalone 501(c)(3)? > > Dan > > > On 21 October 2010 17:00, Dan Scott <[email protected]> wrote: > > Please find below the explanation of and attached PDF > & Tex documents > > concerning the Evergreen / Software Freedom > Conservancy agreement that > > we will need to sign in order to move forward with > establishing the > > Evergreen Software Foundation as a member project of > the Software > > Freedom Conservancy. > > > > In recognition of Bradley's time, I recommend that we > discuss the > > agreement on the list, and compile a list of > questions that come up > > during the course of the discussion. Perhaps we can > try to pull together > > any major questions by the end of next week (Friday, > October 28th)? > > > > > ----- Forwarded message from "Bradley M. Kuhn" > <[email protected]> ----- > > > > Date: Thu, 21 Oct 2010 08:32:17 -0700 > > From: "Bradley M. Kuhn" <[email protected]> > > To: Dan Scott <[email protected]> > > Subject: Details of fiscal sponsorship agreement for > Evergreen & Conservancy > > User-Agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1 (gnu/linux) > > > > I'm glad that you are considering joining the > Conservancy and I am > > pleased to extend an invitation to Evergreen. > Attached is a draft of > > the fiscal sponsorship agreement that representatives > of Evergreen will > > need to sign in order to join the Conservancy. (Both > LaTeX source and > > PDF are included.) Please read this agreement and > share and discuss it > > with all of the key people involved in Evergreen. > > > > As mentioned in my previous email, generally, we > leave it for the > > Evergreen community to decide how you'd like to > discuss the document, as > > signing such an agreement is a big step for the > project and you should > > consider the agreement in whatever forum is most > appropriate for your > > community. I'm happy to answer questions from the > community as you > > consider the document, and you should feel > comfortable cc'ing me on any > > threads you think I should comment on. (However, > before doing so, > > please make sure I can post back to any lists > included in the Cc without > > being formally subscribed.) Meanwhile, you are also > welcome to batch > > questions into one group as well and email them to me > directly, and just > > repost my responses. Basically, whatever works well > for you works fine > > for me. > > > > I strongly suggest that you share the agreement draft > as wide as > > possible throughout the community, and make sure > anyone who has ever > > been a serious contributor to the project in the past > or currently is > > made aware of your plans to join Conservancy. We > very much rely on you > > to make sure that your entire community is in > agreement with joining > > Conservancy, so please make efforts to be sure > everyone has had their > > say. > > > > > > Regarding the agreement, some of the more complex > provisions of the > > agreement reflect the special considerations > necessary to support the > > Conservancy's tax exempt status. However, on the > whole, I believe that > > this agreement fairly and clearly sets out an > advantageous relationship > > for the Conservancy's member projects. As some of > the paragraphs > > specifically indicate, the agreement can be tailored > to reflect > > Evergreen's particular needs. To help you in your > review, below is a > > section-by-section walk through, giving an explanation of the > > significance of each provision. If there are any > sections that seem > > confusing or that you feel should be changed to > reflect Evergreen's > > needs, please let me know and we can discuss them. > > > > > > Introductory Paragraph > > > > This paragraph identifies the parties to the > contract. It's more > > thoroughly explained in paragraph 6, but the point of > this paragraph is > > to name the people who sign the agreement. > > > > Recitals (the "WHEREAS" section) > > > > These paragraphs set forth the basic understandings > of the parties. > > Similar to the "preamble" found in the GPL and other > Free Software > > licenses, these are *not* operative provisions of the > document. > > Instead, they give the context of the agreement. > > > > In this specific case, the key points of > understanding are that the > > purpose of Evergreen is to forward Free, Libre and > Open Source Software > > (FLOSS) and that both the Conservancy and Evergreen > want Evergreen to > > join the Conservancy. The Conservancy's mission (and > charitable > > purpose) is to advance only FLOSS development, > documentation, and usage, > > so it is important that this context be stated clearly. > > > > Paragraph 1 - Term of Agreement > > > > This paragraph says that Evergreen is part of the > Conservancy as of the > > signing date of the agreement. It cross references > the terminations > > provisions in paragraph 7 (which is explained in > greater detail below). > > Note, though, that Evergreen can choose to leave the > Conservancy at any > > time. > > > > Paragraph 2 - Project Management and Activities > > > > a) Both parties agree that Evergreen will be FLOSS. > As noted above, > > this is the fundamental goal and charitable purpose of the > > Conservancy. The Conservancy will not and cannot > sponsor proprietary > > projects. > > > > b) This clearly sets out the limits of the > Conservancy's management over > > Evergreen. Due to requirements connected to > Conservancy's tax exempt > > status, the ultimate legal control of the projects > must be with the > > Conservancy. From the IRS's perspective, the > projects are part of > > the Conservancy, and the purpose of its tax > exemption is to forward > > the FLOSS mission of those projects. > > > > However, the Conservancy does not want to interfere with the > > successful software development, documentation and > advocacy work > > already underway in member projects; such activity > should continue > > after the agreement without interruption or > interference. This > > paragraph delegates some of Conservancy's legal > authority back to the > > developers, so that Evergreen can run itself in > day-to-day matters. > > > > The only limitations that we must place are to > prevent Evergreen from > > producing non-free software (as per Conservancy's > charitable purpose) > > and from spending money or conducting activities that would > > jeopardize the Conservancy's tax exempt status. > All the ordinary > > activities of FLOSS projects come well within these > limitations. > > Some specific activities that are restricted > include lobbying > > activities and spending money in ways other than > consistent with the > > charitable purposes of the Conservancy (i.e., > forwarding FOSS). > > > > Note that developers of Evergreen in their capacity > as individuals > > (when not representing Evergreen still may engage > in for-profit > > service businesses related to their FLOSS work. The work of > > Evergreen itself must fit the guidelines, but > individuals are free to > > act in their own capacity in other endeavors, as > long as they clearly > > state that they are not acting on behalf of the > project when they do > > so. > > > > If you are ever concerned that a particular > activity -- be it one > > carried out for Evergreen or one that an individual > developer engaged > > in independently -- might be a problem, you can > always ask the > > Conservancy for clarification. > > > > c) As discussed above in (b), this section describes > the corporate > > relationship of the project and the Conservancy. > For clarity, it > > refers to section (b), which delegates the actual > management of > > Evergreen to the relevant developers. Conservancy, > when acting as a > > fiscal sponsor, must have the legal authority to > manage Evergreen > > even though section (b) delegates the day-to-day > operations to the > > developers. > > > > d) This section clarifies that Evergreen can't > represent the Conservancy > > without getting written authorization first. If > you'd like to > > represent the Conservancy at a conference or other > such event, you > > can always talk to us about it. > > > > Paragraph 3 - No Fees > > > > It's just as it sounds. The Conservancy provides > services to projects > > to benefit the FLOSS community and does demand member > projects to bear > > the overhead costs. Projects are encouraged to make > donations to the > > Conservancy as a percentage of their funds to assist > the Conservancy > > with its operating expenses. Please note, though, > that Conservancy is > > only able to provide its services to member projects > because there is a > > reasonably healthy general fund available. Donations > from our member > > projects are not the only source of general fund > revenue, but it is a > > substantial component in Conservancy' sustainability plan. > > > > Therefore, if you choose to do so, this section > provides suggested > > wording in brackets for donating a percentage of the > Project's income to > > be used towards keeping the Conservancy up and > running (10% is a very > > common rate that many umbrella organizations require > for their fiscal > > sponsorship services). > > > > Paragraph 4 - Project Fund/Variance Power > > > > This sets out the financial structure in connection with the > > relationship described above in paragraph 2. > Conservancy will separately > > account for Evergreen's revenue (and Evergreen will > have its own bank > > account at the Conservancy once its balance reaches > $3,500). For tax > > purposes, Conservancy will report all of the income > to Evergreen in its > > IRS and state filings. Evergreen therefore will not > need to file any > > separate tax documents with the IRS. Conservancy > will keep the > > financial books for Evergreen, sending periodic > reports to the project's > > developers. > > > > The developers will direct the Conservancy to spend > the money on behalf > > of Evergreen within the limitations imposed by the > tax laws and > > Conservancy's 501(c)(3) mission. Conservancy will > receive any checks on > > behalf of Evergreen, and it will also write checks on > behalf of > > Evergreen. > > > > Paragraph 5 - Project Fund Management/Performance of > Charitable Purposes > > > > This paragraph clarifies that all assets will be > devoted to the > > project's purposes, as those purposes are a subset of > the Conservancy's > > purposes. Assets cannot be used in connection with > activities that > > would jeopardize the Conservancy's tax exempt status. > As discussed > > above, in practice, most typical expenses of FLOSS > projects will come > > well within these limitations. Activities that are > restricted include > > lobbying activities and spending money in ways other > than consistent > > with the charitable purposes of Conservancy (i.e., > forwarding FLOSS). > > > > Paragraph 6 - Representation of the Project in the Conservancy > > > > As the note in this section indicates, we understand > that each project > > will have its own management structure that it has > developed to reflect > > its size and community. This paragraph requires that certain > > representatives be named as the individuals that can > officially > > communicate decisions on behalf of Evergreen. This > can be a single > > maintainer, a committee of developers or a few specified > > representatives. > > > > To the extent that it makes sense for Evergreen to > have a committee of > > representatives, we should indicate how decisions can > be made by that > > committee. For example, should all decisions be > communicated to the > > Conservancy by all members of the committee or would > a simple majority > > suffice? Can any one representative communicate > official decisions on > > behalf of all? Evergreen should also consider adding > a mechanism here > > for adding and removing representatives over time. > We're happy to > > discuss methods that have worked for other projects > with you to help you > > select the solution that is right for you. > > > > We generally find this is the most difficult > provisions for projects to > > work out, as it does require that your project > consider the form and > > type of leadership structure it wants to have, and > that structure will > > be legally formalized in this document for perpetuity. > > > > Paragraph 7 - Outstanding Liabilities > > > > In this section, Evergreen confirms that it has told > the Conservancy > > about any liabilities that might be outstanding prior > to joining the > > Conservancy. This gives the Conservancy some > assurance that its due > > diligence process has been complete and that the > Conservancy's Board > > received all of the information it needed to properly > evaluate the > > project. Liabilities include, for example, financial > obligations, such > > as any debts or outstanding bills, or any legal > claims that could be > > outstanding against Evergreen. > > > > If you believe some liabilities exist, or that > something may be a > > liability and aren't sure, please err on the side of > letting Conservancy > > know about it. > > > > Paragraph 8 - Termination > > > > Projects can leave Conservancy at will. This section > sets out the > > mechanisms for termination to make sure that when a > project leaves the > > Conservancy it does so without jeopardizing the tax > exempt status of the > > Conservancy (and, consequently, the status of all of > the other projects > > in the Conservancy). > > > > There is a 60 day notice requirement so that a new > tax exempt non-profit > > can be found for Evergreen to join. If there isn't > another fiscal > > sponsor or other tax exempt non-profit to take over > Evergreen, Evergreen > > can incorporate as a separate entity and apply for > tax exemption > > recognition. If there is no separate entity -- for > example if a project > > loses momentum and has been abandoned by its developers -- the > > Conservancy must be left with the assets for use by > the Conservancy for > > other FLOSS-related charitable work. > > > > These restrictions would also apply to any separate > tax exempt entity, > > so if Evergreen were to incorporate and achieve tax > exemption outside of > > Conservancy, it would have to deal with the same > considerations upon any > > wind-up or distribution of assets. Members of the > Conservancy's board > > are familiar with non-profit wind-down situations, > and can assist in the > > unlikely event that this unfortunate outcome occurs. > > > > Paragraph 9 - Miscellaneous > > > > These provisions are standard agreement boilerplate - > they clarify the > > enforceability of separate provisions, specify that > the contract be > > governed by New York Law and state that any > amendments to this agreement > > need to be agreed to in writing by all of the parties. > > > > Paragraph 10 - Counterparts/Facsimile > > > > Although it's good to have original signatures in the > corporate records, > > this allows you to simply scan a copy for the > contract to take effect. > > > > > > We hope this explanation document has made it clear > why the agreement is > > structured in this way. If any provisions seem > problematic to you, let > > us know and we'll work with you to try to build an > agreement that works > > for both of us. We look forward to Evergreen joining > the Conservancy! > > > > > > -- > > Bradley M. Kuhn, Executive Director, Software Freedom > Conservancy > > > > > >
