The entrepreneur's dilemma: Justifying contributor agreements in open source

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Doodles of the word open

At the start of the summer, you may recall Project Harmony causing a certain amount of controversy on the subject of contributor agreements in open source communities. My position on them was and is that they are a rarely needed and exceptional tool that should be avoided unless essential, because of their negative effects on the dynamics of open source communities.

One prominent commentator asserted during that discussion that a software company that wants to promote open source has to use contributor agreements if it wants to make money. While that sounds superficially reasonable, I contend that actually that statement is a circular argument. If you've chosen to build your business around a model that requires the accumulation of copyright, then you will need a contributor agreement to make that happen.

But in my talk at OSCON, I asserted that it's a matter of choice whether you use a business model like that, or whether you pick another business model that does not demand copyright accumulation. As an entrepreneur, one has a choice in the matter.

Ultimately any business runs by meeting a scarcity faced by their customer with an abundance they have themselves, and creating profit from the resulting win-win. In the software business, scarcity is harder to identify. While the world was still operating on the hub-and-spoke topology inherited from the Industrial revolution, the artificial creation of scarcity by licensing copyright restrictively worked well as a payment gateway. But in today's meshed society, where the ability to connect direct means mediation is now artificial interference, trying to charge for the right-to-use software appears to the internet as damage and is routed around.

I can understand why an old-fashioned corporation trying to come to terms with open source in the early stages of the road to freedom might think they need a contributor agreement. But it's  churlish and contrarian to start a new business today that relies for its revenue on the artificial scarcity of yesterday. There are plenty of scarcities to monetise - cloud infrastructure, operations skill, stack integration, jurisdictional differences and many more - without the need to try to apply a gateway to open source software. The requirement for a contributor agreement in order to create an artificial scarcity is the genetic marker for a desire for control. In the meshed society that the internet is creating, that's a sign of damage that needs working around.

In designing a new business, the ultimate diagnostic is who is left with the benefits of software freedom; you or you and your customers? The "bubble" of new companies starting and gaining funding based on business models that subvert open source by "dual licensing" and "open core" are effectively over. The branding of hot startups can no longer rely on smoke-and-mirrors tricks of terminology relating to open source because too many people are familiar with the every-day reality of software freedom. And communities are wising up to the hazards of copyright accumulation.

Just because the business model you have chosen demands that you withhold software freedom from your customers, that doesn't mean the only way to do business around open source involves doing the same. So please, don't hide your desire for control that you can artificially exploit behind apparently good words about deserving to make a profit.

This article was originally posted at ComputerWorld UK.

Simon Phipps (smiling)
Computer industry and open source veteran Simon Phipps started Public Software, a European host for open source projects, and volunteers as President at OSI and a director at The Document Foundation. His posts are sponsored by Patreon patrons - become one if you'd like to see more!


In my opinion code contribution agreements serve other purposes that are not contemplated in your article:
a) they allow projects to migrate to other open source licenses if there is the need or willingness to do so
b) they (usually) force the contributors to state they own the copyright of anything they contribute, removing the burden to validate the originality of the contributions from the project

a) Use or-later, negotiate with contributors when the need arises, or put a sunset clause on the copyleft terms to become permissive.
b) Formally stating ownership of copyright is orthogonal to copyright assignment. See the Linux Developer's Certificate of Origin (DCO).

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