On Wed, Nov 10, 2010 at 11:51 AM, Lori Bowen Ayre <[email protected]> wrote: > 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.
Speaking only as a community member and individual Evergreen developer, I support moving forward with the SFC with all due speed. --miker > 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 >> > > >
