Freely available and open to anyone to build upon, open source-licensed software is regularly at the heart of exciting and impactful innovation. Much of this innovation is a result of the ethos of the open source community and its dispersed structure: anyone can put forth an idea for a project and convince others to contribute to its growth and maintenance. The ability to exchange code and ideas across physical borders and traditional barriers to entry has excited and mobilized coders from all walks of life. At the same time, some of the attributes that give open source projects their flexibility and spark passion in open source development communities can hinder a project’s success in the long term. Questions about a project’s ownership and intended use can stymie its implementation, and confusing or inconsistent rules about how project work is assigned, reviewed, or managed can dissuade interested individuals from engaging or lead to project forking or abandonment. Project founders can often avoid these pitfalls and preserve the best elements of open source collaboration by addressing corporate formation and internal governance issues early on in the life of a project.
To help open source projects navigate these foundational questions, the Berkman Klein Center for Internet & Society’s Cyberlaw Clinic, with generous support from the MacArthur Foundation, created “Organization & Structure of Open Source Software Development Initiatives: Challenges & Opportunities Concerning Corporate Formation, Nonprofit Status, & Governance for Open Source Projects.” The guide elucidates reasons why institutional structure and internal governance processes are important and walks the reader through several models of each, explaining how they might benefit or impact an open source development initiative. In the corporate formation section, the guide focuses on the complicated history of open source organizations and 501(c)3 (i.e., tax-exempt status), examines changes in IRS policy, and identifies some kinds of project goals that best align with the requirements for tax exemption. The internal governance section breaks down organizational models both from the open source world and outside it, allowing project founders to envision how each model could affect project processes. The report is also replete with case studies and diagrams that can help open source projects see these ideas in practice. The guide does not prescribe one solution to answer open source projects’ questions. Nor does it treat the “open source community” as a monolithic whole. Rather, the authors seek to offer a range of possibilities and encourage those who manage and participate in open source development initiatives to actively think about available models and consciously adopt approaches that support the work they aim to do and the communities they hope to create.