> ContractPatch is Conservancy’s initiative to give developers the words they need to make sure they can continue to do the work that’s important to them and our community. Whether those words are negotiation tactics for the hiring process, or language to suggest for a prospective employment agreement, ContractPatch helps developers defend their own interests.
Instead of a reactive strategy requiring individual developers to negotiate, a proactive solution might be better.
Create a certification for employers as open source friendly based on their employment contracts. Make a website where developers can see if the company they are looking at is certified open source friendly. And it will likely be more effective if recruiters start hearing from a lot of their prospects that the company isn’t being considered because they are not certified.
This will likely go further than requiring individual developers to have to negotiate it as a one off every time. There is power in collective action.
My last job basically forbade my working on anything on my own time, and claimed to own all ip I produced during my employment at any time during that employment. If I wrote a love letter to my wife, they would have owned it. It was a great job with some amazing people, but that part felt really lousy
I always try to get those clauses removed, but I'm not always successful.
One time a company I worked for used some of my personal code in their product, with my permission. When they merged with another company, the lawyers tried to take ownership of it.
I pointed out that my contract was different to the standard contract and they had no claim. They then came back saying that I had to assume any liability they might face for using it. I demurred and said they were free to remove my code if they had any concerns. They kept the code.
What I learned from this is that even if you trust the people and the organisation you work with, you have to protect your work. The lawyers were just doing their job in the merger.
> They then came back saying that I had to assume any liability they might face for using it.
That's a fairly scary consequence of not using a standard Free and Open Source software licence. As you made a special arrangement to permit them to use the code, I presume your code wasn't already publicly available under a standard copycenter licence?
That's right, the code was not open source, it was shareware.
In those days, I either wasn't aware, or there weren't widely available and understood licenses you could use.
I agree that this was a scary consequence of making my software available. I paid a lot more attention to licensing after that experience, and I now use standard open source licenses to protect myself as well as the work.
Thanks for the link! I'm the situation right now with a new contract; a reminder for them that it doesn't pass muster is extra ammunition to get it removed
IANAL, but my understanding is that those clauses are basically unenforceable in the EU, UK and California - ofc,there are a lot of caveats to that though.
I recently took legal advice on a technically unenforceable clause in a contract. I was told that I would probably win, but it would take a year or two to resolve and I would almost certainly not gain anything financially after legal costs, and I stood a chance of losing money I could not afford to lose.
So terms don't have to be strictly "enforeceable" to have the desired effect from the company's perspective.
What is the rôle of the Software Freedom Conservancy? Sometimes it seems to be a split of the Free Software Foundation due to some kind of personal disagreement (which I'm not interested in). Their "about" page mentions vaguely the "principles of software freedom" but does not state precisely what do they mean by that. I assume that they are not the same as Stallman's four freedoms, since some of the ethical licensing stuff that they push is clearly non-free.
Can anybody here add some context about the need and the main purpose for the SFC? (in opposition to the clearly stated goals of the FSF)
To borrow a sentence from Wikipedia (as it's just slightly more direct than the Conservancy homepage): "Software Freedom Conservancy is an organization that provides a non-profit home and infrastructure support, including legal services, for free/open source software projects." So, to grossly over-simplify: The purpose of Conservancy is to provide for other Free-software projects what the FSF provides for GNU. Most famously, Conservancy has enforced the GPL for BusyBox (a member project of Conservancy), and the Linux kernel (not a member project, but is special in that many contributors have assigned their copyright to Conservancy, and other contributors have authorized Conservancy to represent their copyright).
(It's more accurate to say that SF Conservancy is an offshoot of the Software Freedom Law Center than it is of the FSF.)
As for disagreement with the FSF and "principles of software freedom": Conservancy's principles are Stallman's four freedoms. They aren't "pushing" "ethical licensing"; they hosted a conference that had several talks about it; just as LibrePlanet, the FSF-hosted conference, has also had talks exploring formulations of software ethics that differ from the four freedoms. Indeed, the linked page calls out that so-called "ethical licensing" is non-Free, and advocates for "ethical employment contracts" instead. Any substantive disagreement between Conservancy and the FSF must be fairly recent: Until late-2019 the president of the SF Conservancy was also a member of the FSF's board of directors.
Thanks for the very detailed and clear answer!
I stand corrected regarding the "pushing" of ethical licenses. Of course it is a worthy subject of discussion.
Here is a belated reply to your comment about the python-cf library.[0] My top-level comment[1] does not present its use cases well. While you can compute the billionth digit of π with continued fractions, other methods suit this task better. The library caters to those who need much fewer significant digits. Such users can rely on the result undisturbed by numerical errors, as illustrated by the iterated logistic map in my slides[2].
This is all kind of moot because of how popular DocuSign has become.
You get no opportunity to redline anything -- unless the signature-requestor decides to grant you that permission, which they basically never do, because DocuSign has become "take it or leave it as a service". Sort of like how arbitration has become "no class action as a service". I mean sure, in theory arbitration clauses can allow for class action, but I've never heard of that happening.
You might say that people can always ask for a wording change out-of-band via email, but this neglects the subtle dynamics of contract negotiations -- not just in employment agreements, but elsewhere (my pet example: the aggressive NDAs put forth by semiconductor foundries).
A lot of negotiation is about who ends up looking unreasonable if talks break down, and the reputational cost of appearing unreasonable. If you send back a signed document with a totally reasonable redline, the other side looks unreasonable for not countersigning and moving forward. With DocuSign's "adhesion as a service" the other side will just claim that their legal department doesn't read external emails so they never got your proposal.
I negotiated a contact using DocuSign (I think, maybe it was a similar service). I could leave comments on points if the page but I often just sent them suggestions via email. DocuSign is focused on signing documents. When we were discussing the details we primarily just went back and forth via email.
I'm not sure where feel that the "or leave it" option is any stronger than a paper contract where you send it back unsigned with modifications.
My main point is whether or not you can do it inline it nothing is stopping you from renegotiating. Just because the tool is in "take it or leave it mode" doesn't mean that you actually need to take or leave the offer.
Instead of a reactive strategy requiring individual developers to negotiate, a proactive solution might be better.
Create a certification for employers as open source friendly based on their employment contracts. Make a website where developers can see if the company they are looking at is certified open source friendly. And it will likely be more effective if recruiters start hearing from a lot of their prospects that the company isn’t being considered because they are not certified.
This will likely go further than requiring individual developers to have to negotiate it as a one off every time. There is power in collective action.