Open Locks: Legal commitments that lock in trust

by Andrew Rens, Arthur Attwell and SF Team, 7 July 2016

If you're a social entrepreneur building open knowledge resources – open software, open textbooks, open science – you need people to share their knowledge, code and data with you. Your success depends on it.

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an open-hardware project need to know that their investment isn’t going to be swallowed up by a behemoth with an outdated business model.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]