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Some Open Source projects require their contributors to execute so called Contributor Agreements. The content of these agreements vary, but many address contributors right to make the contribution and some assign copyright in the contribution to the project or some individual or organisation representing the project.

It appears to me that none of these agreements fulfill the requirement of consideration necessary for enforceability under UK/US law. I am aware that the bar for consideration is low, but to me it appears as if this category of agreements as general rule present no argument what so ever for passing it.

Am I missing any obvious counter arguments?

I have provided links to some example Contributor Agreements below. None appear to me to specify any consideration for the contributor that would qualify under US/UK law. The Qt agreement does mention consideration, but none is to be found in the substance of the agreement.

https://d21tv0wm5mksdn.cloudfront.net/wp-content/uploads/2015/03/Qt-ContributionLicenseAgreement_v1_2_FINAL.pdf

https://www.oracle.com/technetwork/oca-405177.pdf

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There is consideration on both sides

The contributor provides their contribution.

The provider provides the open source project to be contributed to.

  • You give me a $10 note and I provide a bag to put it into. Nice consideration, eh? – Greendrake Feb 16 at 22:10
  • @Greendrake sure, consideration has to be sufficient- it doesn’t have to be commensurate – Dale M Feb 17 at 1:29
  • @DaleM How is this different from a promise of gift, which is not enforceable? "I provide a vase, you provide a shelf to put it on." – mac Feb 17 at 10:33
  • @mac please don’t ask questions in comments - it’s a good question so please ask it – Dale M Feb 17 at 10:37
  • Not an actual question, more request for you to expand upon this angle in your answer. – mac Feb 17 at 14:42
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Achieving the goal that you want

OS contributor agreements are generally signed by people who desire a particular piece of code to be integrated in that larger project. That's the meeting of minds (I want the code to be there, the maintainer wants a clear licensing structure) and the whole purpose of that contract. It can be reasonably argued that this is a nontrivial thing that the contributor wants to obtain (as illustrated by the fact that people bother to sign such agreements), and needs the cooperation of the maintainer for this, so it by itself can be treated as a valid consideration.

Compare to a contract of "I agree to pay $100 and you agree not to build a fence next to my garden" - achieving my desire (not having that fence) is a valid consideration even if it literally requires you to do nothing.

In the examples you link, e.g. "Licensor wishes to participate in the development of Qt Software." - this is a consideration that's conditional on this agreement.

Also, "The Licensor hereby authorizes [...] for The Qt Company to enforce the Licensor’s copyrights in and to a Licensor Contribution on the Licensor’s behalf against any third parties [..] at The Qt Company’s expense." is valid consideration, as it's a clause that has been used to achieve the contributor's (community) goals against open source licence violators; getting the maintainer to coordinate the enforcement is some benefit for the contributor.

  • I want to give a gift to someone, that is my goal, even if I cannot force you to accept my gift. That does not make promises of gifts enforceable. The fact that I authorize someone to enforce my copyrights is hardly a benefit to me. If Qt had promised to enforce my copyrights, that might be a different story. – mac Feb 19 at 11:13
  • @mac while promises of gifts are unenforceable, gifts are possible. The Qt contract used as example quite explicitly does not attempt to be an enforceable promise of a future gift, it grants permission now that can be revoked with a simple notification about terminating this agreement. Perhaps this is a key part - in case the contributor changes their mind, the agreement isn't really intended to be enforced against the contributor's wishes. – Peteris Feb 19 at 12:37

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