> Edit: And open-sourcing makes a huge assumption that your investors (who own the rights to a chunk of this stuff) even agree that you can just give away what they invested in.
Interesting point. Is it really accurate? I mean, if investors to a company literally have partial ownership of the company's IP, does it also mean that the company cannot decide to open-source part of its code (i.e., license away part of the company's IP rights), or license code to a third party, without the approval of its investors?
(Not a rhetorical question, but a legitimate question.)
Shareholders own the assets at the time the company is wound-up, those assets include the code and IP.
It may be that as a founder and at an early stage, that you own the majority of those assets but you are still exposing yourself to a bit of a legal nightmare if you assume that majority ownership gives you the right to dispose of it as you see fit. If any investor could argue that you can sell the IP for any price that would offer them a return, it's going to be risky.
In my case, my seed investors were users of the software we created. They wanted the software to be available and so it was all fairly easy, but I was well aware that there was a huge risk there. I probably would not have opened anything if they had said no.
I totally agree with your posts here (and thank you for writing up so many details on this!), but you probably have to do due-diligence on selling the IP for some return for your investors anyway, so I think we're really talking about the situation where that has already come up zeros.
Disposing of the property of a company requires management, then board, then shareholder consent. According to provisions set out in a company's bylaws or operating agreement. Or maybe a court order in a bankruptcy proceeding.
Think of it this way...
Setup: An investor bought 20% of the shares of your company. You and a co-founder have 30% each and the employees have 20% in semi-vested stock options. You have $10,000 in vendor-related debt, a lease on your space, some computers, some software, and $2500 in the bank. You are not going to make another payroll.
Under no circumstances can you, as the founder, with all these people who have various claims on the company can go give that $2500 in the bank to a homeless person you just met on the street. Or to a church. Or, if you already know you are hitting the wall, throwing a big going-away party for the employees.
Software is the same. It's a company asset. You are not a solo flier. It belongs to the company - not to you. You are only one of the several (or many) stakeholders -- including the landlord!
Interesting point. Is it really accurate? I mean, if investors to a company literally have partial ownership of the company's IP, does it also mean that the company cannot decide to open-source part of its code (i.e., license away part of the company's IP rights), or license code to a third party, without the approval of its investors?
(Not a rhetorical question, but a legitimate question.)