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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.

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