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All open source projects that receive contributions of code, documentation, and other copyrightable material must adopt some sort of contribution policy, embodying the rules governing use of such contributions by the project. For most projects, the policy is informal and implicit, typically an unstated understanding that inbound contributions are licensed under terms equivalent to the outbound license of the project (what I call the “inbound=outbound” policy). But there have always been projects that have preferred more formal approaches, such as requiring assignment of copyright to the project’s sponsoring organization, or requiring contributors to sign a (typically broad) contributor license agreement (CLA). While copyright assignment policies have long been controversial, their use, and the use of legally similar CLAs, appears to be growing, particularly among projects associated with a single commercial enterprise.
Most lawyers involved in open source have supported the trend towards wider use of formal contributor agreements, by helping to write them and by advising clients to use them. In this talk I take a contrarian view, drawing on my experiences as Red Hat’s open source licensing counsel. I argue that formal contributor agreements give rise to a number of social, economic and ethical problems that threaten to undermine the cultural foundations of free software and the technical advantages of the open source development model. These problems are most serious for corporate-dominated projects, raising fundamental questions about the proper relationship between free software community development and commercial exploitation of open source. Apologists for formal contributor agreements often claim that they offer legal benefits to the project or its sponsoring organization. I maintain that these legal benefits are dubious and are, in any event, outweighed by the risk of undesirable consequences from use of such agreements. I encourage projects instead to adopt explicit but informal contribution policies that are grounded in free software tradition and that encourage community-building rather than imbalances of power among project participants. For most projects, an explicitly announced “inbound=outbound” policy is the best choice.
Richard Fontana is open source counsel at Red Hat, the world’s largest provider of open source-based enterprise software solutions. He focuses particularly on legal issues arising out of the software development process. Richard is also a board director of the Open Source Initiative (OSI). He has been an active and influential public speaker on matters at the intersection of open source, law and policy.
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