iv Open Locks

Open Locks are a very specific legal mechanism to make sure that initial commitments to keep various things in the open remain so. Below, we discuss how the Shuttleworth Foundation has been using Open Locks, and we give specific examples that may be useful to others.

Open Locks: legal commitments that lock in trust

It’s hard for anyone to make a positive change in the world when they are behind on mortgage payments, have credit card debt building up, and are waiting for a decision on a grant. And things get even testier when a private investor waves a few high-number bills under their nose and offers to buy them out – on the proviso they make a few “concessions”, of course.

The history of open knowledge resource organisations – from open software through open textbooks to open science through open hardware – is littered with this kind of occurrence. Some founders start out with the best intentions before defecting to the comforts and potential riches of a proprietary model. Many others find themselves pressured by investors – or even board members – to lock up knowledge and charge for it instead. But most just run out of steam due to life getting in the way – and seek what is the only way out to make it easier.

Such experience goes against what many founders start out trying to achieve. They fund something to be open, only to turn around after the acquittals have been sent to find the project has now sold its intellectual property to someone else.

This raises an important question: how do we ensure that the founder’s commitment to openness and society endures when circumstances change? The Shuttleworth Foundation solution is the Open Lock.

The Open Lock is a binding legal commitment with explicit wording inserted or added into the foundational documents of a social enterprise, non-profit or for-profit. It is an important innovation for the Foundation – and the wider open world – and is an entrenched provision in the governing documents of a company that requires open licensing.

The impact of the Open Lock is simple but incredibly effective: it means no one who acts for a company has the legal authority to lock down knowledge. It acts as a last line of defence against the threat of proprietary interests now and in the future, and ensures the original commitment to social change remains in place, regardless of what decisions or circumstances occur with the founder.

An Open Lock can be used in a multitude of different ways. It might be used to ensure an organisation cannot apply for patents, or it could be used to prevent volunteer data being sold off to the higher bidder.

Open Locks is a binding commitment in the foundational documents of an enterprise to share knowledge under open licences. Sometimes it includes a commitment not to close knowledge in a certain way. For example, Open Locks 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 the organisation becomes 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 Open Locks usually requires the agreement of an external guarantor, who may only hold a few shares but can veto any change to an 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.

At the Foundation we created Open Locks to add to our 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 licence.

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 point, 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. Our latest language is in our GitHub repository.