Organization & Structure of Open Source Software Development Initiatives Challenges & Opportunities Concerning Corporate Formation, Nonprofit Dalia Topelson Ritvo Status, & Kira Hessekiel Governance for Christopher T. Bavitz Harvard Law School Open Source Berkman Klein Center for Internet & Society Projects March 2017 CYBERLAW CLINIC Table of Contents 3 OVERVIEW & BACKGROUND ACKNOWLEDGMENTS 4 PART I: THE QUESTION OF INCORPORATION FOR OPEN SOURCE SOFTWARE INITIATIVES Introduction 4 501(c)3 Status, the IRS, and Open Source 4 Shift in IRS Policy 5 Conclusion 5 6 BEYOND 501(C)(3): STRUCTURAL CONSIDERATIONS FOR OPEN SOURCE SOFTWARE INITIATIVES Introduction 6 Alternative Federal Tax-Exempt Status Recognitions: 501(c)(4) & 501(c)(6) 6 Nonprofit Corporations 7 For-Profit Entities: Corporations and Limited Liability Companies 7 A Third Way: Benefit Corporations 8 Conclusion 9 10 PART II: GOVERNANCE MODELS FROM THE OPEN SOURCE WORLD & BEYOND Introduction 10 Levels of Control & Openness 10 Model A: Benevolent Dictatorship 11 Model B: Meritocracy 13 Model C: Delegated Governance 15 Model D: Dynamic Governance 17 All About Boards: Examples from the Nonprofit World 19 Norms and Attitudes for a Successful Open Source Software Organization 20 22 CONCLUSION 23 Endnotes 27 Case Studies & Governance Model Illustrations Suggested Citation: Bavitz, Christopher; Topelson Ritvo, Dalia & Hessekiel, Kira. Organization & Structure of Open Source Software Development Initiatives: Challenges & Opportunities Concerning Corporate Formation, Nonprofit Status, & Governance for Open Source Projects (March 2017). Berkman Klein Center Research Publica- tion. Available at: https://cyber.harvard.edu/publications/2017/03/OrganizationStructure Cyberlaw Clinic 1585 Massachusetts Avenue | Suite 5018 | Cambridge, Massachusetts 02138 +1 617.384.9125 | +1 617.495.7641 (fax) https://clinic.cyber.harvard.edu [email protected] OVERVIEW & BACKGROUND This report addresses a number of key considerations that those managing open source software de- velopment initiatives should take into account when thinking about structure, organization, and gov- ernance. The genesis of this project involved an investigation into anecdotal reports that companies and other institutions developing open source software were facing difficulties obtaining tax exempt nonprofit status under Section 501(c)(3) of Title 26 of the United States Code. Based on conversations with a number of constituents in the open source software development community, the authors have prepared this report to address specific questions about nonprofit status alongside questions about corporate formation and governance models more generally. Nothing in this report should be viewed as a substitute for specific legal advice on the narrow ques- tions facing particular organizations under particular sets of factual circumstances. But, the authors are hopeful the document provides a general overview of the complex issues that open source initia- tives face when balancing a need for structure and continuity with the innovative and experimental spirit at the heart of many open source development projects. The report has two primary parts: • First, it addresses some formal organizational considerations that open source software initiatives should weigh, evaluating the benefits of taking on a formal structure and the options for doing so. The report provides information about different types of corporate organization that open source projects may wish to consider. And, it delves into Internal Revenue Service policy and practice and US tax law concerning questions about the tax exemptions referenced above. • In its second half, the authors pull back to consider more broadly questions of organizational struc- ture, offering ideas about governance models that open source organizations may wish to explore, separate from formal corporate structure, as they seek to achieve their missions. Different considerations may inform the choice of formal, legal organizational structures (on the one hand) and governance models (on the other hand). By addressing both, the authors hope that this report will be useful to the broadest possible range of managers of and contributors to open source development initiatives. ACKNOWLEDGMENTS This report was produced with generous support from the MacArthur Foundation, which allowed the Cyberlaw Clinic at the Berkman Klein Center for Internet & Society to host a small gathering in April 2016 during which stakeholders surfaced questions and concerns they have faced when operating in this space. The authors would like to thank MacArthur and the participants in that gathering for their contributions to the conversation and, in particular, express their appreciation for the input of Brian Behlendorf; Nathan Freitas; Esther Lim; Ellen Lubell; Allison Randal; Wendy Seltzer; Tom Stites; and Aaron Williamson. Nadia Eghbal and Jason Griffey offered valuable contributions as well. Finally, Harvard Law School students enrolled in the Cyberlaw Clinic made significant contributions to this report, including Jin-Kyu Baek; Sarah Baugh; Daniele Kleiner Fontes; Marco Medellin; and Joe Milner. 3 PART I empt status), for-profit corporation models, and hybrid benefit corporations to help open source projects understand how to best utilize the ad- THE QUESTION OF vantages of corporate formation to suit their INCORPORATION FOR specific needs. OPEN SOURCE SOFTWARE 501(c)3 Status, the IRS, and Open Source INITIATIVES Open source projects often seek to follow in the footsteps of well-known organizations such as Introduction Apache and Mozilla and seek nonprofit status. Corporate formation may not be the first item This approach may be driven by a sense that on the to-do list of an open source project just nonprofit status exempts an organization from beginning to expand. But, having a formal busi- paying federal and state income taxes. But, that ness structure can confer benefits that open is not necessarily the case. In fact, an organi- source projects might find desirable as they zation must qualify for a tax exemption under plan their growth. federal tax law. First, a corporate entity can shield the organi- The Internal Revenue Code exempts certain non- zation’s founders and members from personal profit organizations, including “[c]orporations, liability should someone bring a suit against the and any community chest, fund, or foundation, project. The existence of a legal entity also helps organized and operated exclusively for religious, delineate ownership of the project’s assets, charitable, scientific, testing for public safety, which can help open source projects sort ques- literary, or educational purposes,” from paying tions of intellectual property more clearly. In federal income taxes.1 Because this specific ex- addition, all corporate formation options avail- emption appears in 26 U.S.C. 501(c)(3), people able in the United States come with stipulations often refer to organizations that receive the ex- on how entities should be run and managed. emption as “501(c)(3)s” or as having “501(c)(3) These requirements create structural support, status.” governance and process rules, and checks and balances for how an entity should operate and Historically, some open source organizations make decisions. Those tools, in turn, can help have preferred the 501(c)(3) exemption to oth- promote the longevity of an open source project er 501(c) alternatives.2 Nonprofit open source and protect it from organizational turmoil re- organizations generally provide their software garding decision-making authority, ownership to the public for free.3 These organizations may of ideas, and financial questions. rely on donations in order to pay for any or- ganizational expenses.4 Donors prefer to make Many open source initiatives have a desire to donations when they can take deductions for adopt a mission-driven business model because their donations and as a result are more likely they intend for their work to give back to the to make donations to nonprofits with 501(c)(3) open source development community and serve status.5 As a result, in order to make their organi- the public good. Following the example of some zations attractive to potential donors, nonprofit of the most established open source organiza- open source organizations often have sought tions, many attempt to form as a nonprofit cor- the 501(c)(3) exemption. porations with tax-exempt status. While there are benefits to achieving so-called 501(c)(3) At the beginning of the open source software status, several alternative models of corporate movement, open source organizations attained formation exist that open source projects would the 501(c)(3) exemption without much difficul- be wise to consider because they may align bet- ty. Open source organizations began to apply ter with a particular project’s goals. for 501(c)(3) status as early as 2001.6 The Mozil- la Foundation received an Internal Revenue Ser- In this section, the authors address several vari- vice (“IRS”) determination of its 501(c)(3) status eties of nonprofit designation (including tax-ex- within six months of submitting its application.7 THE QUESTION OF INCORPORATION FOR OPEN SOURCE SOFTWARE INITIATIVES 4 Over the course of the 2000s, open source orga- open source software organizations do not have nizations were able to obtain 501(c)(3) status on affiliations with for-profit businesses. Neverthe- a regular basis. A 2008 report by the Software less, the BOLOs drove IRS policy for at least two Freedom Law