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Attempting to hire contractors to develop code using open-source framework with Apache 2.0 license.

In reviewing our legal contract, the contractors are hesitant to sign because they want to donate framework bug-fixes and new widgets (checkboxes, drop-down lists, etc.) to open source effort, which aren't proprietary. Legal department is OK to carve out specific exceptions in contract, but contactors can't view code until signing contract, and even then, likely won't know where the bugs are that need fixing, or which widgets will need to get developed in next 1-2 years to add to the contract up front.

Is there some language we can drop into the contract to satisfy both parties? How do others address what seems like a basic concern with open source frameworks? Both parties agree in principle with each other's concerns, yet unable to "fix" the legal wording to move things forward.

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    Why not just open-source your whole application, like responsible developers do?
    – Vikki
    Feb 26, 2022 at 19:21

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To a very real extent, this is always going to depend on there being good faith between the parties. If working with someone I knew and trusted, I'd be happy with a clause along the lines of

Fixes which both sides agree are general improvements to framework X and not specific to company Y's business may be released under the Apache 2.0 license at the contractor's discretion.

If there's less good faith, you may be able to agree on a neutral third party who could adjudicate any disputes. I don't think you can really carve out specific exemptions into the contract ahead of time, software is just too complicated for that to work (and too easy to game any metrics people might come up with).

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    I strongly agree with this -- the hiring party wants their proprietary functionality of the app to be secret, but are okay to disclose bug fixes and general-use UI components. But what if the hiring party decides that a particular UI component is a critical, innovative piece of their app's functionality that makes it stand out from the competition? Or, to put it another way, they realize that a known proprietary function is structurally best suited as a framework UI component. There is no way to decide in advance what is and isn't on either side of the line.
    – apsillers ♦
    Feb 23, 2022 at 22:41
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    If one side is a corporation rather than an individual it seems like it might be difficult to ascertain their agreement for the purpose of checking that "both sides agree". Does it need to be specified which individuals can represent the corporation?
    – bdsl
    Feb 25, 2022 at 0:25
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    @bdsl Probably, yes. One for the lawyers to sort out; OP has the support of a legal department.
    – Philip Kendall
    Feb 25, 2022 at 9:02
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    I would likely add something along the lines of "Such agreement will not be unreasonably withheld", this gives the contractor a bit more assurance.
    – deep64blue
    Feb 25, 2022 at 21:31
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Remember a NDA can only be enforced if the company is able to convince a court there has been harm done to the company or is likely to be harm done by the person breaking the NDA.

Bug fixes to a open source framework being released seems low risk, but "particular UI component" being created and released is much harder as they are more likely to help a competitor or give away information about the application.

Regardless of the wording in the contact the large company has a legal department that can make life costly for the contactor if the company so wish.

There is also the issue of how much time the contactor is spending doing work that would be done quicker if it was not going to be released as open source.

Hence let's reverse the problem, the company clearly does not wish to have high costs each time a new version of the open source framework is released, hence require the contractor to whenever possible get any "private" changes to the open source framework included in the next public version.

A implementation of a "particular UI component" that is common in other frameworks seems like something the client would rather not have to maintain of a new version of the framework breaks it.

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  • So then the rule is "anything the open source project is likely to accept as part of the framework is not proprietary functionality"? Seems reasonable.
    – Brilliand
    Feb 25, 2022 at 23:00
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If that's what you and they both want, then why not say so?

Could something more like this, work? It might need polishing, but as a concept approach?

Bug fixes and general enhancements to any software X which is (1) used under license by company Y, but (2) not specific to company Y's business or proprietary software, may at the contractor's sole discretion, be released under a license appropriate to software X ("First License"), provided that if required at company Y's sole discretion, it shall be dual licensed to company Y in a manner appropriate for company Y's business ("Second License"). Such Second License only to act to ensure company Y may rely upon use of the code in its business, and not to restrict any rights and obligations provided to any third party (being neither company Y not the contractor not their heirs, assigns or representatives) in the First License, and in the event of conflict the rights and obligations of third parties provided in the First License shall prevail.

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Making it contractual is a bad idea

Contractors are there to work on what your company needs. They aren't there to play with frameworks. There's a very real risk (and I've personally seen it) that they use your company's time for their own interests.

If the contractors are making changes to open-source software for your company, it's perfectly reasonable that the changes get pushed back - when your company agrees that there isn't more urgent company work to be doing. Or it's also perfectly reasonable for the company to let the contractors clone the Git repos for that open-source software, after first checking that nothing company-specific has been dropped in there, and let the contractors handle the push back on their own time. Both of those are informal arrangements, relying on goodwill on both sides.

If the contractors are so keen on this that they're looking for some legal provision, that rather blows goodwill out of the water. And more than that, I think it's very unlikely they'll be prioritising the company. Unless they have some truly rare skills, this is starting to sound like trouble you don't need.

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