Note: I’m a software developer, not a lawyer. I suspect I’m not the only coder whose eyes roll to the back of their head when legal or tax matters are discussed.

However, if you’re involved in the free software movement—especially in the United States—you may want to read through this, as long as it may seem. It appears that the United States’ Internal Revenue Service has strongly shifted its views of free and open-source software, and to the detriment of the movement, in my opinion.

What follows should not be construed as legal or tax advice or professional interpretation of those laws. If you have questions, please consult a professional.

Earlier this month the Yorba Foundation received a formal notice from the Internal Revenue Service (IRS) denying Yorba 501(c)(3) tax-exempt status. It’s possible this is nothing to be concerned with (at least, not unless you’re a part of Yorba). Reading their response, I believe this denial is actually a cause for concern for free software groups within the United States, and perhaps abroad.

A quick primer

501(c) is the section of the United States’ tax code dealing with tax-exempt organizations. The third type (i.e. 501(c)(3)) are for organizations that are “organized and operated exclusively for one or more of the following purposes: religious, charitable, scientific, testing for public safety, literary, educational, fostering national or international amateur sports competition, or the prevention of cruelty to children or animals”. IRS publication 557 gives the full run-down. Wikipedia has a good explanation of 501(c) and 501(c)(3) as well.

Free/libre/open software organizations such as the GNOME Foundation, Mozilla Foundation, Apache Software Foundation, Linux Kernel Organization, WordPress Foundation, Django Software Foundation and more operate under a 501(c)(3) status.

One misconception is that 501(c)(3)’s don’t pay any taxes. 501(c) only provides exemption from Federal income tax. Most states honor Federal exemption and will exempt those organization from state income taxes as well. The organization must still fulfill other tax obligations (such as payroll, unemployment, and sales taxes).

The advantages of 501(c)(3) go beyond income tax exemption. The status also allows donations to the organization to be treated as a tax exemption by the donor. For those of you giving $25 or $50 that’s not much of an advantage (although those donations are most certainly appreciated!). However, Yorba has seen donors offering potentially thousands of dollars back away because of our lack of 501(c)(3) status. Many large charitable foundations and grants will only consider donating to groups with a 501(c)(3) status.

Last year there was a bit of a dust-up—a scandal to some, a distraction to others, depending on their politics—when many right-wing nonprofit organizations in the United States began complaining they were being unfairly targeted by the IRS. Media inquiries determined IRS examiners were given “BOLOs” (Be On The Lookout) for certain keywords in 501(c) applications, including “Open Source Software”. Last year I spoke with Wired about the issue.

The question of the IRS targeting certain groups has not died off, although the connection to free software has fallen off the radar screen.

Yorba’s application

The Yorba Foundation applied for 501(c)(3) in December 2009. We applied as a charitable, scientific, and educational organization. Remember that we only needed to meet the criteria for one of those to receive 501(c)(3) status.

We received two requests for clarification, one on June 23, 2010, and another on September 14, 2010, which we responded to in full. We received a notice on October 5, 2011 that our application was still being processed.

The requests for clarification contained mostly non-surprising questions. For example, “Describe whether your organization provides any goods or services for a fee.” (We don’t.) Some were odd: “Will any of your directors or employees reside at your facility [i.e. our office]?” (Ah…no.)

Other than those three notices and a couple of phone calls with our representatives at the Software Freedom Law Center, that was it.

The final determination letter, the denial of exemption, is dated May 22, 2014, almost four and a half years after we first applied. That strikes me as excessive, particularly since, as the above list of open-source foundations suggests, ample positive precedent existed.

The new 501(c)(3)

What I find alarming are some of the statements made by the IRS in their denial letter. This is what could have a direct impact on the free software movement, at least here in the United States. What follows are the most hair-raising statements in their denial letter and my interpretation and response (IRS’ statements are in italics):

You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying.

(To help with the legalese, remember that Yorba is applying as a tax-exempt entity, and so nonexempt purposes are those that are not charitable, scientific, etc.)

The IRS reasons that since Yorba’s open source software may be used for any purpose, Yorba is not a charity. Consider all the for-profit and non-charitable ways the Apache server is used; I’d still argue Apache is a charitable organization. (What else could it be?)

There’s a charitable organization here in San Francisco that plants trees throughout the city for the benefit of all. If one of their tree’s shade falls on a cafe table and cools the cafe’s patrons as they enjoy their espressos, does that mean the tree-planting organization is no longer a charity?

Mere publishing under open source licenses for all to use does not show that the poor and underprivileged actually use the Tools. … You do not limit your distribution and do not know who uses the Tools much less if they use them for artistic purposes. … you do not know who uses the Tools much less what kind of content they create with the Tools.

(Here and elsewhere, “Tools” is IRS shorthand for Yorba’s software.)

The IRS is correct that Yorba does not know who is using our software or for what purposes, nor does Yorba limit the distribution of our software to a particular charitable segment of society. But when I spend three milliseconds imagining how that would work, I shudder.

What’s more, these objections clash with three of the Four Software Freedoms and copyleft in general:

The freedom to run the program as you wish, for any purpose (freedom 0).

The freedom to redistribute copies so you can help your neighbor (freedom 2).

The freedom to distribute copies of your modified versions to others (freedom 3).

In other words, we (and, presumably, everyone else) cannot license our software with a GNU license and meet the IRS’ requirements of a charitable organization.

Freedom 1 (“The freedom to study how the program works”) isn’t attacked as non-charitable by the IRS, but it is defined as non-educational:

The purpose of source code is so that people can modify the code and compile it into object code that controls a computer to perform tasks. Anything learned by people studying the source code is incidental.

Which is like saying the only point of an algorithm is its final answer, and so Einstein publishing E=mc2 offered nothing more to the world than a way to accurately measure the amount of energy in, say, a cube of sugar or a block of cheese. Any deeper learning is incidental.

I can directly trace the start of my year career in software development to the first BASIC programs I encountered as a 9 year-old. I pressed the Break key, typed LIST, and learned. I didn’t receive any formal education in programming until my junior year in high school. I know for a fact I’m not the only one.

How many coders learned from studying and modifying existing code? Think about UNIX, BASIC, HyperCard, and just about every scripting language devised. The availability of source code and its relation to learning how to program is so fundamentally correlated, it’s zen.

The development and distribution of software is not a public work even if published under open source or creative commons compatible licenses because software is not a facility ordinarily provided to the community at public expense. … In the face of such consistency of the key characteristics over four centuries we are constrained from extending the term public works to encompass intangibles such as software.

The “four centuries” of terminology being referenced here is that software is not a lake, dam, bridge, highway, etc. In other words, because 17th century English Common Law doesn’t mention IMAP email clients or JPEG decoding, software is not a public work.

Sarcasm aside, these statements are annoying because they create a kind of Möbius strip Catch-22 with the earlier statements I quoted. Since Yorba makes our software widely available to the public at large, we’re not truly charitable; but since software doesn’t meet the IRS’ definition of “public works”, making our software widely available is not charitably serving the public at large.

And then there’s this humdinger, which sounds like it came from a Douglas Adams novel:

…public works must serve a community. Open source licensing ensures the Tools are accessible to the world. We have not found any authority for the proposition that the world is a community within the meaning of § 501(c)(3).

There’s something delicious about the phrase “We have not found any authority for the proposition that the world is a community.” Mahatma Gandhi, Jesus Christ, and Martin Luther King Jr. are three I can name off the top of my head.

You are the copyright holder of some Tools code. Private persons are the copyright holders of the portion of Tools code you do not own. … Even though you are the copyright holder to a portion of Tools code, the portion of Tools code owned by private persons cannot be a public work within the meaning of § 501(c)(3).

I believe what the IRS is inadvertently requiring here is copyright assignment. Since Yorba does not require copyright assignment from our contributors, the IRS appears to think our software cannot be a public work.

Copyright assignment is controversial in the free software community. (A nice overview can be found here; the controversy up-close and in-person can be found here and here.)

I hope I’m wrong about this. I doubt they’re going to start enforcing this in the future for organizations that already enjoy exemption. If they do, it will be a royal mess for those projects having to contact every author of every non-trivial contribution and get them to sign over their rights. This is all a big if, of course.

Where Yorba stands

This does not spell disaster for Yorba. The Foundation’s existence does not hinge on 501(c)(3) status. It certainly would’ve been advantageous if the IRS had granted it. It certainly would’ve been a better world if the IRS hadn’t waited four and a half years to inform us of their decision.

We have no plans to appeal their decision. It looks to be an arduous legal battle we cannot afford.

I hope other open source projects will take note of this decision, especially projects considering applying for 501(c) status.

For those who think I’m being alarmist, I encourage them to consider the above statements by the IRS and ask themselves how the good projects already granted 501(c)(3) would’ve stacked up under the IRS’ new parameters.

I also recognize that I’m cherry-picking statements from the IRS for my commentary. I selected the ones I thought would be of most interest to the community.

The full PDF of the IRS’ decision can be found here.