Re: Proposed Fiscal Sponsorship Agreement between Conservancy & Metalink

[Anthony Bryan]

On Monday, September 3, 2012 2:12:54 PM UTC-4, Bradley M. Kuhn wrote:

Dear Metalink Project Community,

Conservancy and the Metalink project have been in a conversation for
some years about Metalink becoming a member project of the Software
Freedom Conservancy.

Anthony contacted us a few weeks ago and asked to get the process moving
again, and we've done so.  Attached please find a document called a
"Fiscal Sponsorship Agreement" (FSA) that is a proposed agreement
between the Metalink project and Conservancy.

The basic idea is that Metalink becomes part of the Conservancy, and
then operates as one of our projects in a not-for-profit way.  Since the
FSA delegates back to the project leadership technical decisions about
the project, Conservancy won't typically involve itself in the
day-to-day details of the technical work of the project.

Conservancy, in turn, handles administrative, legal, and logistical
matters.  A Metalink Committee (made up initially of Anthony, Neil, and
Tatsuhiro) will advise this process, and Conservancy will generally,
when acting on behalf of the Metalink project, act in the manner they
request.  The primary veto power that Conservancy will always have is
that Conservancy can only act in ways that advance our general
non-profit mission, which is to advance, defend, promote and help
improve Open Source and Free Software.

We believe that the goals of the Metalink project align very well with
Conservancy's mission, and we'd be delighted to have Metalink join our
organization.  The details of joining and other such matters are
generally left to the Metalink Committee, so you won't regularly see
emails from me and my colleagues at Conservancy on this list.  However,
I'm posting now to let you know about these plans and to seek any
comments and/or input you have about Conservancy before we proceed to
work with the Metalink Committee to complete the attached FSA.

Also included in the cc list is Conservancy's General Counsel, Tony
Sebro, who would be happy to take your questions too -- on list or off.

Please note, though, that Tony is not subscribed to the list, so you'll
need to be sure to cc him on any correspondence on the list you'd like
him to read it.  For my part, I've temporarily subscribed to the list to
engage in the conversation with you, and I'll let you know when I've
unsubscribed (which will be after our discussion on this issue seems
complete).

We look forward to Metalink joining the Conservancy!

Finally, if you want more information about what Conservancy does, its
other member projects, etc., please take a look at our website, in
particular these URLs:
   http://sfconservancy.org/members/services/
   http://sfconservancy.org/members/apply/
   http://sfconservancy.org/members/current/ 

thanks, Bradley!

I had some questions before this message showed up (stuck in moderation) that Tony answered already, but I'll just post them here.

Metalink people, if you're interested, please look over the sponsorship agreement.

it seems like a good thing & I plan on signing soon if no issues are brought up.

they have a proven track record of other member projects, & I think it will be helpful for us. Google also suggested joining for Summer of Code, and we had been in talks with them for about 3 years. :)

---------- Forwarded message ----------

From: Tony Sebro <to...@sfconservancy.org>

Date: Mon, Aug 27, 2012 at 1:04 PM

Subject: Re: Proposed Fiscal Sponsorship Agreement between Conservancy & Metalink

To: Anthony Bryan <anthon...@gmail.com>

Cc: "Bradley M. Kuhn" <bk...@sfconservancy.org>, Tatsuhiro Tsujikawa <tatsu...@gmail.com>, "Neil M." <nabb...@gmail.com>

Hi, Anthony.  These are great questions!  See below:

On 08/26/2012 12:50 PM, Anthony Bryan wrote:

>

> questions...

>

> 1.  "The Project agrees to donate ten percent (10\%) of its gross

> revenue (including, but not necessarily limited to, all income and

> donations) to Conservancy for its general operations." and the two

> paragraphs following.

>

> I guess this is a question about the Signatories acting independently

> from the Project. is there any delineation between Signatories and

> Project besides which one a check is made out to?

> what is meant by "income?"  does it mean if in the future we were

> compensated by someone, as an independent contractor/consultant on

> incorporation of Metalink into their software, we must donate 10% of

> that compensation to the conservatory?  that isn't necessarily

> prohibitive because whether it is a true donation or a business

> expense, we would not be paying IRS taxes on anything except our

> "profits"?

Once the FSA is executed, all Metalink activities and transactions occur under Conservancy's auspices.  Conservancy would manage all Metalink "income," which would primarily consist of (i) donations made to the Metalink project and/or (ii) income generated by the Metalink project for charitable services (e.g., registration and exhibit fees for a Metalink-sponsored conference, etc.).  Conservancy doesn't pay taxes on these kinds of income due to our status as a tax-exempt charity.

Authority to manage the technical direction is delegated to a Project's Project Leadership Committee (PLC) - which, in the case of most member projects, is initially comprised of the Signatories.

As a separate matter, individual PLC members can indeed work as independent contractors/consultants.  This is not uncommon.  Many of Conservancy's projects are represented by PLCs that include consultants (along with academics, hobbyists, and corporate employees).  Conservancy does not collect a percentage of any personal earnings under the FSA, and individuals pay taxes on their income as they normally would.  However, PLC members cannot promote their individual businesses as being endorsed by or affiliated with Metalink in any official capacity, and they can't accept donations on behalf of Metalink separate from Conservancy.

I should also note that a PLC member's position as a consultant/employee may create a conflict of interest in certain situations.  For example, Metalink may want to raise money to fund a software development contract for the charitable purpose of improving the core.  A PLC member's consulting firm wants to handle the work.  In this scenario, that PLC member would recuse herself/himself from the PLC's decision-making process.  Conservancy provides Member Projects with a  conflict of interest policy that provides greater detail on how to manage specific scenarios, but as a general practice, PLC members are to avoid making decisions on matters where their personal or professional interests are at odds with the Project's interests.

> 2. on first read, I wasn't sure what happens to project liabilities (I

> guess these occur when you front travel $$, etc. for which there are

> not enough donations?  if the agreement is terminated between the

> project and the conservatory, does that mean the project accepts those

> liabilities and must find a way to pay?

>

> what type of circumstances might cause us to personally incur liability?

As a practical matter, Conservancy isn't going to spend money that a Project doesn't have.  For example, Conservancy's standard software development contracts include a provision that automatically suspends and/or terminates the agreement if the Project were to run out of funds before the end of the term of the Agreement.

Similarly, Conservancy has a working draft of a travel policy that would govern when developers could and could not be reimbursed for their expenses.  Would-be travelers would need to obtain PLC approval prior to incurring expenses; in turn, PLCs would have a responsibility to check their project fund's balance before granting approval.  Conservancy would try to be accommodating in cases where the travel policy isn't followed - we do have assets in our general fund to "float" to Projects in rare circumstances - but travelers who fail to obtain approval in advance risk not getting their expenses reimbursed, and PLCs who fail to act responsibly in granting approvals risk damaging their relationship with Conservancy.

As such, there should be no reason for Conservancy or the Project to be exposed to an unfunded liability if and when the parties should decide to terminate the FSA.

That being said:  if the Project were to terminate the FSA in order to form or join another public charity (see FSA Sec. 8(c)), Conservancy would transfer all assets and liabilities to the Project's new corporate entity.  For example, if Metalink had $100,000 in its account and started the Metalink Foundation, Inc., a registered 501(c)(3) organization, then upon termination Conservancy would transfer the $100,000, along with any outstanding liabilities (e.g., contracts), to the new org.  The Metalink Foundation would then hold those liabilities.  If the Project were to terminate the FSA without another organization to act as a successor (FSA Sec. 8(d)), then Conservancy would dispose of the outstanding assets and liabilities in an appropriate manner.  Neither the assets nor the liabilities would be transferred to the individual PLC members.

On a separate matter:  Conservancy provides some liability protection to PLC members and project developers as it relates to patent infringement.  In the unlikely event that a patent holder were to file suit against a Project, that suit would be filed against Conservancy as the corporate entity, and Conservancy would zealously defend the Project in the litigation and pay damages, if necessary.  Of course, there are limits:  Conservancy can't stop a judge from being particularly draconian and piercing Conservancy's corporate veil to go after individual developers.  But the odds of that happening are infinitesimal:  patent holders tend to go after revenue generators, not free software non-profits.  I've never heard of a free software non-profit ever being sued for patent infringement, and I don't expect it to ever happen.  That being said:  I am not your lawyer; I'm Conservancy's lawyer.  If you're worried about personal liability in this context, you should talk it over with your own counsel.

>

> 3. is there more documentation that describes the responsibilities of

> Committee members?  there have been occasions when committee (Board

> members?) were held liable for certain actions?

>

Projects that join Conservancy have typically already developed an informal process for making decisions about their Project's technical direction.  As such, Conservancy hasn't prepared a "job description" for PLC members per se.  We do have a few corporate policies that govern both Conservancy and our Projects, namely, the conflict of interest policy and the (proposed) travel policy.  I've attached them for your review.  If and when Conservancy wants to adopt a new corporate policy, we create a mailing list that allows members of every Project's PLC to chime in, provide feedback, and help shape the policy before it's finalized and adopted by Conservancy's Board of Directors.

We've also written a few primers for PLC members relating to fundraising, which aren't so much a description of responsibilities as they are a list of suggestions and best practices.  I've attached them for your review as well.

As for personal liability:  no, there has never been an instance in Conservancy's history where a PLC member was held personally liable for his/her actions.

If you have specific questions about your responsibilities as prospective PLC members, let us know.

Best,

-Tony

--

Tony Sebro, General Counsel, Software Freedom Conservancy

+1-212-461-3245 x11

to...@sfconservancy.org

www.sfconservancy.org