Why Your Project Doesn't Need a Contributor Licensing Agreement

[ This is a version of an essay that I originally published on Conservancy's blog ].

For nearly a decade, a battle has raged between two distinct camps regarding something called Contributor Licensing Agreements (CLAs). I've previously written a long treatise on the issue. This article below is a summary on the basics of why CLA's aren't necessary.

In the most general sense, a CLA is a formal legal contract between a contributor to a FLOSS project and the “project” itself⁰. Ostensibly, this agreement seeks to assure the project, and/or its governing legal entity, has the appropriate permissions to incorporate contributed patches, changes, and/or improvements to the software and then distribute the resulting larger work.

In practice, most CLAs in use today are deleterious overkill for that purpose. CLAs simply shift legal blame for any patent infringement, copyright infringement, or other bad acts from the project (or its legal entity) back onto its contributors. Meanwhile, since vetting every contribution for copyright and/or patent infringement is time-consuming and expensive, no existing organization actually does that work; it's unfeasible to do so effectively. Thus, no one knows (in the general case) if the contributors' assurances in the CLA are valid. Indeed, since it's so difficult to determine if a given work of software infringes a patent, it's highly likely that any contributor submitting a patent-infringing patch did so inadvertently and without any knowledge that the patent even existed — even regarding patents controlled by their own company¹.

The undeniable benefit to CLAs relates to contributions from for-profit companies who likely do hold patents that read on the software. It's useful to receive from such companies (whenever possible) a patent license for any patents exercised in making, using or selling the FLOSS containing that company's contributions. I agree that such an assurance is nice to have, and I might consider supporting CLAs if there was no other cost associated with using them. However, maintenance of CLA-assent records requires massive administrative overhead.

More disastrously, CLAs require the first interaction between a FLOSS project and a new contributor to involve a complex legal negotiation and a formal legal agreement. CLAs twist the empowering, community-oriented, enjoyable experience of FLOSS contribution into an annoying exercise in pointless bureaucracy, which (if handled properly) requires a business-like, grating haggle between necessarily adverse parties. And, that's the best possible outcome. Admittedly, few contributors actually bother to negotiate about the CLA. CLAs frankly rely on our “Don't Read & Click ‘Agree’” culture — thereby tricking contributors into bearing legal risk. FLOSS project leaders shouldn't rely on “gotcha” fine print like car salespeople.

Thus, I encourage those considering a CLA to look past the “nice assurances we'd like to have — all things being equal” and focus on the “what legal assurances our FLOSS project actually needs to assure its thrives”. I've spent years doing that analysis; I've concluded quite simply: in this regard, all a project and its legal home actually need is a clear statement and/or assent from the contributor that they offer the contribution under the project's known FLOSS license. Long ago, the now famous Open Source lawyer Richard Fontana dubbed this legal policy with the name “inbound=outbound”. It's a powerful concept that shows clearly the redundancy of CLAs.

Most importantly, “inbound=outbound” makes a strong and correct statement about the FLOSS license the project chooses. FLOSS licenses must contain all the legal terms that are necessary for a project to thrive. If the project is unwilling to accept (inbound) contribution of code under the terms of the license it chose, that's a clear indication that the project's (outbound) license has serious deficiencies that require immediate remedy. This is precisely why I urge projects to select a copyleft license with a strong patent claus