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I Figured Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys
Tuesday, December 28 2010 @ 01:21 AM EST

I've been thinking and thinking about everything, and I've figured out what I need to explain to you next. Reading the log of the recent OpenSUSE board meeting discussing setting up a foundation for the project turned on the light in my head: you need to understand bylaws. Because corporations are setting up foundations to get you to donate code to them, and they set them up to suit themselves, not to benefit you. There's a difference between the community setting up a foundation to be a project's home and a corporate sponsor doing it. I'm going to write about that in more detail later. To really explain it, I need to explain some things that you might think will be boring or too foreign, but if you can learn Perl, you can learn bylaws.

I'll tell you that my favorite task when I was working as a paralegal was drawing up bylaws for new businesses and entities setting up for the first time. It interests me, so I'll try to make it interesting to you. But what should motivate you is this: whatever the bylaws say is what the entity legally can and can't do. It matters. It will affect you. So, just as you'd try to learn a language before visiting a foreign country, at least enough to get around so that if you get lost, you'll have some way to find your hotel again and a bathroom en route, you should understand enough about bylaws and incorporation so no one can blindside you.

I'm still working on the Comes v. Microsoft exhibits project, and I swore I'd finish first, so it will take me a while to get to this to explain in detail, but in the meantime, I just want to say to the community stakeholders in the OpenSUSE Project, here's what I think you should do:

Hire your own lawyer.
Don't rely on Novell's lawyers to represent the community's interests in the foundation.

I'm as serious as a heart attack.

Novell's lawyers represent Novell, not you. Ditto the new chairman of the board, assigned by Novell. None of them represent you, and I hope you don't sign off on anything at all, including bylaws, until you have your own lawyer to represent your interests. Why not ask the Software Freedom Law Center to help you? And if they are overloaded, ask them to refer you to someone. That's my advice, from the heart. I found the log minutes disturbing, as I'll explain when I have more time. I'm not saying Novell is or isn't trying to roll over you, or that they are your enemy, but you don't share identical interests. No one has to be a bad guy for that to be true. It's the same reason why a man and woman wanting to have a prenuptial agreement drawn up should have different lawyers. They may love each other, but their interests are not identical as far as the terms of the agreement are concerned, if only because their love might not prove everlasting, if you know what I mean, and legal stuff is about the future, about what ifs. Like what if he turns out to be a creep. Or she takes all the money from the joint account and disappears. As unlikely as it seems to the couple, the lawyers are thinking about that, and they are drafting language for all contingencies, even if the couple are so in love they imagine nothing bad will ever happen to them. It's what lawyers are for.

And to henne, one of the participants in the OpenSUSE meeting, let me please say: listen to your inner voice. That's my advice. You have the right instincts. I share your concerns.

If you think you can't find a lawyer you want to hire or insist you don't need one, then at least read up on bylaws so you aren't acting like a newborn in a pool of sharks. Make yourself try, please. I'll explain to you how. The key is to get hold of a book or website that explains what typical by-laws are, and books like that will show you what's normal and the various phrasing that you expect to see, so you will understand the base template. Then when you see other language, you'll at least recognize it as something unusual, worth looking at closely, and you'll know what the words mean, not just what they say.

Here's a basic form for a non-profit that Lectlaw has made available. Here's Lectlaw's corporate bylaws form, and here's Findlaw explaining what the words are for. If you scroll down, there are questions and answers you might find helpful. And there are companies who set up LLCs for small businesses, and they'll write up bylaws for you, and here's Findlaw's page on that. And here's Nolo's bylaws generation service for $11.99. I'm not suggesting any particular product, because I haven't used them. This is for information only. I'm just showing you how to get to understand how bylaws should look.

Companies sell software too that will help you get language for bylaws. I used to use it when I used to do exactly that as a paralegal when small business clients wanted to set up an LLC or corporation. You walk through the software, tell it what you want to achieve, and it plugs in the language. I am not suggesting that you use that finished product without a lawyer, because the questions are deeper than you'll understand in all their implications -- for one thing, in the US, states' corporate statutes can vary in some particulars -- but it is a way to get an education on bylaws.

You can also read other people's bylaws online, like the Apache Software Foundation's and here's a bunch and another bunch, including Google's and Caldera Systems' and Halliburton's. Again, I'm not recommending any of these, just saying it's another way to deepen your knowledge of bylaws and what's seen.

Outercurve's by-laws are here. Outercurve is what they call the Microsoft-organized and funded Codeplex Foundation now. Note that the by-laws were revised in November, and that Andy Updegrove was hired by them to help them out. They likely picked him because he trashed their original by-laws, and do read what he wrote, because it will show you the shadows behind the wording in bylaws.

Or buy a book. Google Books has mainly really old ones for full view, so buy the most recent one you can find for your state. Look for one that explains how to write bylaws, with examples of how to achieve various and sundry goals. Here's an example of one that Google shows, but contact the publisher and see if it's the latest. The law is like a river, not a still pond. Or contact the ABA and if you are rich, get their book, Model Business Corporation Act, Annotated 4th Ed, or go to the nearest law library, if they let you in, and read until you can't stand it any more. The model law is what the states often follow when they are trying to set up their own corporate laws. And here's what law students study to understand Corporate Law. Then if someone proposes some bylaw language you don't understand, you can look it up and find out why lawyers use that particular wording, what the goal is.

As you can see, there are ways to get an overview of bylaws. But there is nothing as good as your own lawyer. Why? Because he knows how cases have been resolved, what worked out and what didn't. That knowledge is pure gold, and he or she can make sure that your interest is represented in the conversations and negotiations and in the ultimate bylaws. If it isn't, you probably don't want to be in that particular foundation.

More details will follow.


I Figured Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys | 171 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread, if needed.
Authored by: songmaster on Tuesday, December 28 2010 @ 01:56 AM EST

[ Reply to This | # ]

What I have learned from Groklaw
Authored by: IMANAL_TOO on Tuesday, December 28 2010 @ 01:57 AM EST
"if you can learn Perl, you can learn bylaws"

What I have learned from Groklaw is that the application of law can be wrought
into unrecognizable from any Whereas.

That said, I am all attentive.



[ Reply to This | # ]

Off topic only
Authored by: songmaster on Tuesday, December 28 2010 @ 01:58 AM EST
Please make links clickable, read the red instructions and set Post Mode to

[ Reply to This | # ]

News picks discussions
Authored by: songmaster on Tuesday, December 28 2010 @ 02:01 AM EST
Please indicate which news item you're discussing in the post title.

[ Reply to This | # ]

Re: I Figured Out What to Explain to You Next: Bylaws
Authored by: rps on Tuesday, December 28 2010 @ 03:52 AM EST
Great article, PJ, and quite informative. IANAG but it doesn't take one to see
where you're going with this. Good luck, and I sincerely hope your warnings go
heeded. As always, I'll be watching Groklaw with great interest.

[ Reply to This | # ]

COMES goes here - 2270 to go...
Authored by: bugstomper on Tuesday, December 28 2010 @ 03:57 AM EST
... or maybe just 2220 given the amazing group of 50 or more transcripts in the COMES thread in the previous article that may not have been uploaded yet.

Find a Comes v Microsoft document, transcribe it with HTML markup.
Post it here in a comment as Plain Old Text
with the HTML tags to make it easy for PJ to copy and paste.

The easy way to find a document that needs transcription is on the
Comes v. Microsoft Exhibits by Number pages.
Scroll down to find one without a transcription.

Shell script to display how many Comes documents have not yet had descriptions or transcripts posted

curl -s \
"[0-1][0-9]" | \
grep -A 1 '^<td id="E' | grep -c '^<td></td>'

Shell script to display the numbers of the next N documents whose descriptions or transcripts have not yet been posted.
Change the 5 to however many of the next available document numbers you want to see.

n=5 ; \
curl -s \
"[0-1][0-9]" | \
grep -A 1 '^<td id="E' | grep -m $n -B 1 '^<td></td>' | \
sed -n 's/.*"E\(.*\)"><a.*$/\1/p'

[ Reply to This | # ]

avoid OpenSUSE like the plague
Authored by: Anonymous on Tuesday, December 28 2010 @ 06:56 AM EST
If you are an Open Source developer your best bet is to avoid OpenSUSE like the plague. Novells chief strategy seems to be to use OpenSUSE to pay lip service to 'open source' and at the same time making sure it isn't going anywhere, so you'll be wasting your time on it when you could be working - and getting paid - for a real Open Source company. There's also the `Microsoft Patent Pledge for Non-Compensated Developers'. This says you don't own your own work, can only work on it outside of company time and and can't get paid for it. Not much of a protection then is it.

"Microsoft hereby covenants not to assert Microsoft Patents .. but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux .. and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property'"

Groklaw - theRegister

[ Reply to This | # ]

when I was working as a paralegal
Authored by: Anonymous on Tuesday, December 28 2010 @ 08:27 AM EST
So you are no longer a paralegal?

[ Reply to This | # ]

The Microsoft Office
Authored by: lanser on Tuesday, December 28 2010 @ 09:01 AM EST
The Microsoft Office For those that can access BBC iPlayer look at 16:44 onwards

[ Reply to This | # ]

I Figured Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys
Authored by: Anonymous on Tuesday, December 28 2010 @ 09:12 AM EST
I don't know the company, but it seems there are also companies that do value both their customers and their employees: Joel Spolsky's Blog... Read the "About the author." at the bottom.

[ Reply to This | # ]

I Figured Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys
Authored by: Anonymous on Tuesday, December 28 2010 @ 09:27 AM EST

PJ, once again you are my hero for making sure people understand what is &
isn't in their own best interests.

Thank you!

[ Reply to This | # ]

Now THAT is what is so cool about PJ
Authored by: Anonymous on Tuesday, December 28 2010 @ 12:22 PM EST
OK, it's only part of what's cool about PJ. Her relentless honesty and
insistence on good behavior by the good guys are both more cool. Still...

PJ doesn't know what to do next. So she looks around and asks, "Where are
software geeks next going to get burned by the law?" And she finds an
answer, and does a very educational (and eye-opening) article, with lots of
resources for further learning. Priceless.

Message received, PJ, and thank you. I'm not in a position where I need it
(currently), but thank you.


[ Reply to This | # ]

For all us Non-USA Persons ?
Authored by: Anonymous on Tuesday, December 28 2010 @ 12:31 PM EST
I suspect that for the rest of the world, the bylaws of a US-based non-profit
are about as significant as the SCO Arbitration in Switzerland which never

Nice idea; but I don't work in Dollars. I have a Queen rather than a President.

Arbitration in Switzerland, I would sign up to; but I can't afford the travel or
hotel bills, so I'm not likely to be represented there either.

So what should the 'Rest of the World' think ?

[ Reply to This | # ]

I Figuredn Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys
Authored by: Anonymous on Tuesday, December 28 2010 @ 01:44 PM EST
pj is telling us that studying bylaws is hard work, but well worth it. I think
this is going to go down as one of her most important posts. I hope people
follow her advice and it makes a real difference in the oss world.

[ Reply to This | # ]

I Figured Out What to Explain to You Next: Bylaws -- And a Word to the OpenSUSE Guys
Authored by: Anonymous on Tuesday, December 28 2010 @ 02:01 PM EST
"You can't just code, you have to get the law right." Yes, and it was
rms, the father of us all, who first made that clear several decades ago.

[ Reply to This | # ]

A Thank You
Authored by: Anonymous on Tuesday, December 28 2010 @ 06:37 PM EST

I'd like to thank you, as I'm sure other openSUSE board members would like to as
well, for your insight into what needs to be thought about in creating a

To be sure, that recent post and logs that you reviewed was not the first time
we had discussed the creation. In fact, we've been discussing this for quite
some time. What should be clear is that this is a community-mandated creation
and that Novell is viewed as a partner and stakeholder in this process.

In other words, this will not be a foundation created by Novell for Novell. It
is a foundation that the community wants to create and we welcome Novell's
participation and support of the Foundation.

Our recent discussions have shifted from creating the foundation to focusing on
ensuring that the process itself is as open and transparent as it can possibly
be. We want as many people to look over the documentation as possible and
provide their input where it is applicable. And we certainly invite you to also
provide your input on the drafting of the bylaws.

The Board is mindful that different people/entities have different views and
stakes in the creation of the Foundation. And we have stated in the past that
if Novell decides not to endorse the creation of a Foundation, we'll go it
alone. We certainly don't hope that will be the case as we believe everyone
should take part in this process, Community included.

Many of the examples you have provided, we are mindful of as well. Certainly,
examples like XOOPS Stitching where someone was able to take the funds away from
the organization is something we're concerned about and want to ensure the
Community itself has primary control over the Foundation and not any one

I think your suggestion to contact the SFLC for legal advice is worthy of
consideration. We're also blessed to have a member on the board who is also
well versed in these matters pertaining to German law, where we will likely
establish a foundation e.V.

We're actually quite excited about our move towards a more open and transparent
process, and your post on this subject proves it is working the way we intended
it to. We want to hear from folks like you as well as others in the open source
community at large.

Bryen M Yunashko
openSUSE Board Member

[ Reply to This | # ]

Poison Bylaws from Mark Twain & Andy Updegrove
Authored by: Anonymous on Wednesday, December 29 2010 @ 08:14 AM EST

Two links on poisonous bylaws:

Winter, not logged in

[ Reply to This | # ]

Bylaws template
Authored by: Anonymous on Thursday, December 30 2010 @ 07:33 PM EST
In addition to the samples linked in the article,
I found this template useful today:
Sharing the link in case it's useful to someone else.
(Unfortunately it's in a proprietary word process format,
but OpenOffice-3 reads it fine.)

[ Reply to This | # ]

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