FOSS – Helen King Turvey

Open Locks: Legal commitments that lock in trust

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

Contributors to your open project invest their time and energy because they trust you with their gift to the world. So the challenge is this: How can you keep their trust? Can you seal it in for the long term?

There are many successful projects that have managed this, notably in open-source software. Linux, Firefox and Wikipedia are good examples. The practice of sharing knowledge in open-source-software communities is now common among researchers, civil society and open government projects. These social goods are built on the currency of trust.

There have also been failures and defections, where a once-open project closes itself off. For example, exciting open-textbook initiatives have reverted to the very proprietary model they were created to replace, and open-access repositories have been bought out by proprietary publishers.

No doubt those projects’ leaders never thought they’d be forced to make such concessions to their founding principles. But even the most passionate leaders will move on, acquire mortgages and new responsibilities, face personal crises and illnesses, and weaken under pressure from investors and business partners to abandon their commitments to sharing knowledge.

As your organisation grows, will it stay on mission? Might you sell out, making the knowledge proprietary and breaking their trust? When your team is under pressure from financial investors, is your good nature the last line of defense against proprietary interests? And when you leave the organisation one day, how will you know for sure that it will stick to the open principles you laid down?

As a leader, you may believe you’re committed to social change and to keeping knowledge open, but others might not. For example, patients who volunteer their medical data for research need to know for sure that it’s not going to be monopolised: they want it to be used widely to find a cure, not kept secret for one corporation’s competitive advantage. Donors crowdfunding an open-hardware project need to know that their investment isn’t going to be swallowed up by a behemoth with an outdated business model. And volunteers and staff need to know that, if their bold attempt to change the world fails, others can pick up where they left off and try again.

When projects lose their open nature, contributors become wary, and trust evaporates.

An Open Lock is a way to bake a founder’s commitment to openness into the legal structure of a social enterprise, so that it endures when circumstances change. It’s a binding legal obligation – explicit wording in foundational corporate documents – to share knowledge.

For several years we’ve been locking openness into our work at the Shuttleworth Foundation. Here we’ll explain how Open Locks work and provide sample legal language you can use, too.

How Open Locks work

An Open Lock is a binding commitment in the foundational documents of an enterprise to share knowledge under open licenses. Sometimes it includes a commitment not to close knowledge in a certain way. For example, an Open Lock could state that an enterprise will not apply for software patents.

For-profit enterprises and many non-profits are incorporated: that is, they are legal entities recognised under law, and defined by their foundational documentation. Open Locks can be written into those foundational documents when they are incorporated. Or existing companies can add them by amending their foundational documents. An organisation that is not incorporated can include an Open Lock in a constitution.

The legal effect of an Open Lock is that no one who acts for a company has the legal authority to lock knowledge down.

As with similar provisions, an Open Lock can usually be changed, but change can only happen through a special procedure. For instance, changing an Open Lock usually requires the agreement of an external guarantor, who may only hold a few shares but can veto any change to the Open Lock. The guarantor is often referred to as holding a golden share. The difficulty of changing an Open Lock means that it can’t be done quickly or easily or surreptitiously. Instead, there is time for social processes to play out, for contributors to withdraw their work, for someone to fork the project, and for those who’ve helped build it to be heard.

Open Locks as an open experiment

Using corporate documents to keep social enterprises focused on their mission, with their core values intact, is increasingly widespread. Mission Locks and Golden Shares are examples.

At the Foundation we created Open Locks to add to this toolkit because we needed them to help our Fellows build new enterprises on a foundation of openness. For instance, Content Mine is a scientific data-mining non-profit that uses an Open Lock to guarantee that its data and software will remain open. And Siyavula is a textbook publisher committed to licensing all volunteer contributions under a Creative Commons Attribution license.

While our Open Locks have already helped to protect commitments to open knowledge, we’ve only been using them for a few years. They are an experiment that will only be truly tested over the long term. There is much to learn. We are looking forward to seeing how other social enterprises do better than we have done, and extend the experiment in ways that we haven’t thought about.

Exactly how an Open Lock is implemented depends on applicable company law, what the company does, and the likely threats to its mission. As a starting place, we’ve developed example clauses that we and others can use, adapt and improve.

We use this model legal language as an Open Lock in agreements and foundational documents. You can find our latest language in our Github repository.

Example legal language

XX.1. Notwithstanding any other provision the company shall not

XX.1.1 communicate copyright works (other than computer programmes) or data to the public under any terms without offering the same works or data under a licence or permission that complies with the Open Definition. The Open Definition, refers to the Open Definition maintained by Open Knowledge, current at the time this provision becomes effective and any subsequent version for as long as Open Knowledge is steward of the Open Definition and is incorporated by reference (http://opendefinition.org/). Provided that the Company may communicate works or data under terms more restrictive than the Open Definition if simultaneous with the initial communication it gives a public undertaking to offer the same works or data under terms that comply with the Open Definition within thirty (30) days of the initial communication and that it subsequently complies with the public undertaking.

XX.1.2. distribute copies of a computer programme without simultaneously offering the source code of the same computer programme under a licence or permission regime that complies with the Open Source Definition. The Open Source Definition, refers to the Open Source Definition maintained by the Open Source Initiative current at the time becomes effective and any subsequent version for as long as the Open Source Initiative is steward of the Open Source Definition and is incorporated by reference (https://opensource.org/osd).

XX.1.3 apply for or obtain a patent that will affect the efficacy of an open license;

XX.1.4 apply for a patent that covers or effectively covers the operation of a computer programme;

XX.1.5 charge royalties for any use of any patent, right to inventions, registered design, semi-conductor product and mask right, design right, trade marks, copyright, neighbouring rights, database rights and any rights having equivalent or similar effect which may exist anywhere in the world, required to comply with an open standard;

XX.1.6 distribute hardware without offering an irrevocable non-exclusive royalty free license or licences that allows anyone to make, use, sell, offer for sale, import or distribute copies or derivatives of the hardware conditional only upon attribution and share-alike requirements.

“XXX. Provision/s ( XX, XXX, ) may only be changed with the prior written agreement of [insert name of golden shareholder]

Download our legal templates

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

Since 2007 we have required Fellows to apply open licences – first CC-BY-SA and then CC-BY – to all intellectual property created during the fellowship.

The same principle applies to works produced within the Foundation. Openly licensed resources are only as useful as the number of people who can access to them, so now we are eating our own dogfood and making our Fellowship Agreement and Project Agreement available on GitHub.

These agreement outlines are the most recent in a series of iterations based on our experiences over time. The process was led by Open Counsel, Andrew Rens, who has an amazing aptitude for converting real world vision into legal language. We have tried to optimise the agreements to reflect the essence of our Fellowship, including a firm commitment to openness.

We are releasing these under CC-BY. Other document templates will follow as part of our contribution to the pool of online reference works. It is our hope that this will give you some insight into how we work and that you might share yours as well, increasing that pool and allowing us to learn from your experiences.

The How of Open

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

Open source, open access and open educational resources are a positively disruptive force on markets and have increased choice for citizens in many different ways. Be it the manner in which you access education or learn about the way your government spends your taxes, the result is that more people know about and embrace openness than ever before.

This success has also made the term fashionable and sometimes leads to overenthusiastic uses of the open label or, more worryingly, open-washing. It can result in uncertainty and confusion for those who plan to open up knowledge resources for strategic purposes. The detail of how open is open, matters.

Although governments and inter-governmental organisations are adopting the creation and use of open knowledge resources, there is a surprising lag by the majority of non-profit organisations, philanthropies and other social change makers in adopting policies and practises that make their own knowledge resources free. Perhaps one reason for this lag is an assumption that existing informal practises, such as making reports available and free to access on their websites, means that they are open. It does not.

We have found that co-creating communities are familiar with the details of legal permissions around knowledge resources and are distrustful of projects which are not completely clear on this issue, closed or open. Many are averse to the risk of intellectual property litigation and will avoid re-using knowledge resources when permissions are unclear, rendering the initial investments of those wishing to be truly open, neutralised.

We have the privilege of working with creative, imaginative people who implement fascinating projects by using open knowledge resources strategically to bring about social change. From our shared experience, here are some ideas that we found useful.

Find out what open really means: There are a number of very useful descriptions of what constitutes open. For open source software there is the Open Source Definition. Proponents of free software also use the Free Software Definition. The Budapest Open Access Initiative applies to academic research and writing. The Cape Town Declaration on Open Education calls for open educational resources to be freely shared. A more general description of open is the Open Definition: “A piece of data or content is open if anyone is free to use, reuse and redistribute it — subject only, at most, to the requirement to attribute and/or share-alike”.

Create a policy on openness: There may be good reasons to keep particular resources closed. The best way to find out is to have a policy that all resources shall be open unless and until someone gives a compelling reason not to.

Change the default setting: Traditional copyright protection defaults to closed. Change the default by actively applying an open licence. It is necessary to take active steps to open a resource by using either a public domain dedication or open copyright licence. To be open, a knowledge resource must meet the minimum criterion of being legally open for copying, remixing and redistribution. The commonly used dedications and licences are created specifically so that you do not need to be a lawyer to use them effectively.

Start today: It may be hard to put all the resources which you’ve ever funded under an open licence. You don’t have to start at the beginning. Instead you can identify those resources which are easiest to open, for example ones you own the copyright to, and those with the likely highest pay-off. Focus on those first. Continue by using open licences or public domain dedications for resources which you fund or create from now on.

Keep an inventory: If you know what you have, you know what there is to open up and where it might be most useful. It also helps to track resources in order to actively apply open licences to them and make them available to others.

Encourage modularity: Design resources to be modular, so that others can customise them more easily. This takes advantage of the propensity of people to value what they’ve made themselves, even when it’s simple assembly of existing parts.

Use open formats: Open is not just about permission, but also about enabling action. The use of open formats and adherence to open standards render resources more open on the continuum between open and closed.

Track re-use: Demonstrate the effectiveness of open resources by tracking downloads, remixes, and attributions.

Open as a Strategy for Philanthropy and Social Change

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

The more we expose the thinking, working and practices of our organisation, our ideas and our projects, the better. Exposing this information allows other organisations, project implementers, funders, policy makers, change agents, advocates and academics to learn from what we have done.

We have found that being intentional about making knowledge resources, funded and/or produced by us, freely and openly available creates a number of strategic opportunities:

You can buy one copy, give 1000′s free. If you’ve already paid for the creation of a knowledge resource then the more people use it, the more effective your spend. When knowledge resources are available in digital form via the Internet the cost of making and distributing a copy, while not quite zero is close to zero.

You can pay for one experiment, try many. Openness can make development efforts more robust, by allowing multiple experiments to take place with the resources you’ve funded. As change-makers we know that knowledge must be contextualised to be effective but we can’t afford to contextualise resources for every (imaginable and unimaginable) context. We can afford to give upfront permission to others to do so.

‘Given enough eyeballs, all bugs are shallow’. That is how open source coders express an important lesson they’ve learned about making knowledge resources open. The larger the pool of contributors the more likely it is that someone will propose a best fit solution. Imitate the humility displayed by open source coders who believe that someone you’ve never met could use your work to make something wonderful which you never imagined.

Let others help you to put your best foot forward. When you make things open you give them your best efforts. We’ve found it to be a good way of showing exactly what our organisation is all about; anyone can see (and use) what we’ve created and funded.

You can create building blocks for more effective change. Network effects result from many people making use of the same knowledge resource. It becomes more robust, more effective and has many more uses. Further more, once something has been done, a standard set, people can focus on new challenges and build on top the principles already in place.

Open can be a short-cut to trust. Potential allies find it easier to trust you when you’ve committed to keeping knowledge resources open.

It helps to empower people. Change makers hope to enable people to help themselves. Opening knowledge resources gives permission to people to self organise, build on, customise and modify, and contribute back what they’ve learned. If that is not empowering then what is?

It has the potential to extend the life of creativity. Opening resources allows others to use and remix them, long after we and our partners have focused on new issues.

You can build knowledge pathways. An ‘all rights reserved’ attitude gives us more control, but it also adds more overhead. If we had stuck “All Rights Reserved” on our resources then others would have to get permission from us. Why would they bother? We would never know about potential partners because they would give up.

You might just strike it big. While many open knowledge resources are useful to particular communities some become global phenomena.

From Traditional Funder to Today

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

Our main goal was to improve the quality of education in South Africa. We invested in projects that offered unique and innovative solutions to educational challenges in a developing society, focused on the areas of science, technology, entrepreneurship and maths in education, as well as propagating the use of open source software. The Foundation operated as a traditional funding agency – we accepted proposals and funded them. Grantees implemented their projects and came back with reports.

By the time we’d seen the third proposal suggesting the same intervention, we realised that we were not learning, building institutional knowledge or having sufficient impact in the world as a result of our investments. The ideas were all valuable in the world, but we had the potential to be more challenging and to make a contribution by testing theories in areas where other funders feared to tread.

We started down a road of incremental change. We gradually shifted our focus and methodology as we took stock of the ever changing landscape, seeing education in its wider context and experiencing the power technology had to speed up innovation, even in South Africa where access to such technologies was still scarce.

During 2006/7 however, we had a crisis of leadership which resulted in a very high staff turnover and no new projects being taken on. Whilst this was clearly not optimal, it also gave perspective and clarity, allowing us to ask questions and define our future as a Foundation based on what we thought could work, not from what we had inherited, or what someone else did. The breakdown of the organisation allowed us to imagine something better.

Our Funder gave a new mandate to the management team: Re-imagine the Foundation, based on openness and innovation, using the money we have in a smarter fashion. Sit with the kernel of our learnings, and create a process that will take best advantage of them. Most importantly, test our theories and work towards a re-boot.

We observed a number of things that informed this iteration of the Foundation.

Because our investments often involved a technological component, by the time we could agree on the perfect project plan with a grantee, innovations appeared and the contextual environment changed. We had to be more nimble.
Openness and technology enable the unrestricted sharing and spread of ideas. We could implement our programme internationally.
If there was not one person, a champion, whose life’s work it was to bring about the change, it could break an intervention. We should support people, not just projects.

This sparked a process of gradual but deliberate change, a journey from project based funding to the individual, independent fellowships of today. We focused in four thematic areas. Communication and Analytical Skills in Education, Intellectual Property Rights, Open and Collaborative Educational Resources, and Telecommunications.

We brought the projects in-house and offered residential fellowships to thematic experts and thought leaders in their respective fields. The strategy was to work on policy in order to remove legislative barriers and do action based projects that would demonstrate the potential of working bottom up. We wanted to bring about positive shifts in thinking and doing in the world, and we learnt a great deal, both in breadth and depth. These learnings became the building blocks of our current way of working.

It is better to support an idea where it originates, than try to make it conform to a geographic context. We support Fellows where were based, not just in South Africa.
While the policy space remains very important in removing barriers to change, action based initiatives are a better fit for us. It allows us to test theories about ideal policy in a real world and examine the results. We focus on implementation rather than policy.
Only some ideas will get traction and that is fine. It is the nature of being experimental and encouraging innovation. We actively encourage being bold, and learning from things that fail.
Innovation is rarely something that is entirely new, but rather fresh thinking that adds value in incremental ways. Either way, that is what we look for. We understand that context is important.
The ideas that are most interesting are those that are not yet dominating newspaper headlines or flooding social networks. Those ideas typically have enough brilliant minds and funders paying attention to them. We do not have set thematic areas for funding and are open to discovery.
Past success is not a guarantee of future success. Nor is proven expertise. Creative problem solving often comes from left field. We make bets on inspired brilliance rather than rewarding past successes.
Freeing up 100% of a person’s time, and even more importantly attention, to follow their dream, will accelerate the research and development process. We offer the equivalent of a reasonable salary as a fellowship grant, to remove the concerns of making a living and allow space to thrive.
A sense of ownership is important for the success of any initiative. When an individual has skin in the game, they are more likely to have true ownership, which lasts far longer than the financial investment of a donor and fuels the continuation of the work. We ask the Fellow to co-invest financial resources into their projects. We also ensure that any resulting IP vests in the Fellow.
Individual commitment can only move an idea forward up to a point. We give the Fellows access to project funding to amplify their own investment of time and money at least tenfold.
Levers for positive social change in society do not come in a standard package. Markets forces, charities, governments, universities and many other types of institutions have a role to play. We support Fellows by investing through the best vehicle fit for purpose, be it for profit, non-profit or a rogue individual.
When a great idea originates, it rarely comes with the experience of institution building. Administration, human resource, legal and financial quandaries are huge burdens and can often overtake the initial kernel of genius. We provide a legal, financial, administrative and technical home for the Fellows, allowing them to concentrate on their objectives.

This is by no means the end of our learning journey and evolution. Each fellowship is made up of a set of unique components linked to the individual, the theme and the context. Shared threads run through all or some of them. This think piece series is our expression of this continuing process, sharing some of our questions and discoveries along the way.

Openness

Note: the post below was written by Helen Turvey and Karien Bezuidenhout when we ran the Shuttleworth Foundation. Whilst some of the specifics pertaining to the organisation are no longer relevant, the ideas, theories and insights still hold true.

The open source software movement has not only created widely used software but million dollar businesses. Although the model is well established for software development, distribution and use, it is not the case for education, philanthropy, hardware or social development, to name but a few important endeavours. The default imposed on knowledge resources by copyright law is automatic lock down. This default makes little sense if your agenda is social change.

We wanted to understand what would happen if the values, processes and licences of the FOSS world were applied to areas outside of software. Could that provide key building blocks for further innovation? What are the conditions that optimise innovation for positive social change? How can openness add value to that process? This is at the heart of the Foundation’s contribution to the world.

Philosophically and practically, we default to open instead of lock down. We subscribe to the Open Definition where data or content is open if anyone is free to use, reuse and redistribute it, thereby ensuring interoperability between different pools of material. But for us, openness goes beyond the licence. It includes being open to collaboration and contributions from outside your immediate reference group, inviting many eyeballs to review your process and make it better. Combining openly licensed intellectual property with open practices enables and encourages others to experiment in their own environments, localise, contextualise, translate, adapt and spread the tools and methodologies we are developing much easier than from a central control hub.

By no means do we believe that every piece of content in the world should be openly licensed or every process collaborative. In the digital age, the lines have become more and more blurred between the traditional categories of creators and users of intellectual property. We are taking the stance closest to extreme openness as a counter balance to the prevailing idea of completely closed, in order to establish new norms along the continuum.