A need for open source contracting boilerplate June 11, 2010

In the last 3+ years that I've been doing open source work, a situation has come up again and again... a contract that anticipates contributing to open source projects.

Every contracting and employment agreement I've ever seen seeks to deliver as much of the product as possible to the party giving money.  In the case of closed source, this makes a ton of sense.  You're getting paid to do work and the folks that are paying you should have the benefit of your work.

But open source and open source-related work is different.  It's not just different in that you're contributing code to open source projects, but the complete model of cross-pollination and organic growth through community participation is different... the goal is to get as many people involved in the project and a critical component of that is the liberal ability for a contractor/employee's ability to interact with open source communities, share ideas and designs on open mailing lists and contribute code (examples, documentation, patches, blog posts, etc.) to those projects without fear of running afoul of contractual obligations.

There is a further issue that employees have certain duties not to compete with their employers.  But it may be that contributing a patch to a "competing" open source project may resolve a data exchange incompatibility, and that may violate contractual, statutory or common law obligations that you have to your employer.

So, I'm looking for two things:

1. Examples of contracting or employment agreements that have language that anticipates contribution to and active involvement in open source projects.
2. A couple of lawyers and/or open source domain experts to work with to create an open, sharable template for contracting and employment agreements that anticipate active involvement in open source.

I'm a lawyer by training, but do not practice (BU Law '91).  When I was at Test Hurwitz, I redrafted most of their boilerplate agreements into shorter, easier to read agreements... if you bought software from Massachusetts-based software providers in the 90s, you likely agreed to a shrink-wrap agreement that I drafted.  I was an early supporter of the EFF (and continue to support them).  I believe in open source software and making money in business, however I am not keen on free software, nor am I a zealot.  Well, I am a zealot about having contracts that are understandable by the people that sign them and reflect the realities of the relationship.

So, if you want to join me in putting together language that can be broadly adopted and fall into categories 1 or 2 above, please send me a note.  My gmail name is feeder.of.the.bears.

Looking forward to helping lawyers and businesses do the right thing by open source contractors and employees.