For Approval: Educational Community License 1.0
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For Approval: Educational Community License 1.0
by cdcoppola
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I'm writing to request approval of the Educational Community License 2.0. ECL 2.0 is intended to replace ECL 1.0 (http://www.opensource.org/licenses/ecl1.php) and it is closely modeled after the Apache 2.0 license in an effort to reduce the burdens of license proliferation. Our eventual goal is to adopt the Apache 2.0 license itself, however we cannot adopt the Apache 2.0 license in its current version because the colleges and universities that are the primary contributors to our projects face restrictions on their ability to grant patent licenses that are incompatible with the current version of the Apache license. ECL 2.0 is intended to make as few changes to the Apache license as possible, while remedying this incompatibility. A little background... I'm making this request on behalf of a number of large open source communities that are developing open source applications for education, primarily colleges and universities. ECL 1.0 is presently used by the Sakai Foundation (www.sakaiproject.org), the Kuali Foundation (www.kuali.org), and a number of smaller open source projects within the higher education community. The Sakai and Kuali Foundations are not-for-profit organizations modeled after the Apache Foundation and dedicated to coordinating community activities and safeguarding the community's intellectual property. The Sakai Foundation is developing enterprise collaboration and learning software and has more than 100 institutional members from around the world. The Kuali Foundation is developing a number of ERP-type applications for colleges and universities in areas such as Financials, Endowment Management, Research Administration, and Student Services. Over the past few years, we have developed an IP management practice modeled after Apache's. We use inbound licenses modeled after the Apache's Contributor License Agreements. We also have a rigorous evaluation process for third party software that is proposed for inclusion in our distribution as part of our QA process, and we supplement this with periodic third party reviews using outside consultants / software tools and counsel. As part of this process, we have attempted to adopt the form of contribution agreement used by Apache for use in connection with contributions by educational institutions. We wanted to use the Apache form of contribution agreement so that we could eventually move away from ECL 1.0 and move towards adoption of the Apache form of open source license. In the process, however, we discovered an incompatibility between the patent clause in the Apache license and the rules that these educational institutions must follow. The incompatability has two features: First, while these educational institutions want to encourage contributions to these projects because they have the potential to be of enormous benefit to the entire higher education community, many research institutions simply do not have the ability to grant a patent license that will cover not only inventions by the individual faculty who are contributing to these projects, but also faculty and staff that have no involvement with the projects. In this regard, they are unlike a corporation that might wish to contribute to an open source project, where the corporation will typically control the patents that may be embodied in their contribution under relevant employment agreements. Second, in many cases these universities are subject to pre-existing research and grant funding agreements that limit their ability to grant patent licenses. The need to evolve ECL 1.0 In November we held an international licensing summit among our community with the goal of developing a common licensing framework that would serve to minimize the friction of licensing when contributing to and adopting open source software among colleges and universities. See http://summit2006.osnext.org. One key outcome of the summit was the decision to try to move towards adoption of the Apache 2.0 form of outbound license. This was favored for a number of reasons: 1. It is a popular license and therefore would likely be accepted more readily 2. Adopting the Apache license would help with license proliferation 3. It includes a patent license 4. It would create a high degree of inbound/outbound licensing symmetry with our contribution agreements. Unfortunately, adopting the Apache license outright isn't an immediate option for our community, because of the patent-related issues described above. Adopting the Apache 2.0 form of outbound license would break the symmetry between the inbound contribution agreements that our participating institutions are able to provide, we obviously cannot make claims in the outbound license that are not supported by the inbound contribution agreements. In response, we decided that ECL 2.0 should be a clone of Apache with minimal changes to achieve inbound/outbound license symmetry. This is what we are submitting for approval today. I'll wrap up my rationale for our approach, and for approval with the following considerations: 1. As far as we know, ECL 1.0 is in use only within our community. We have a very cohesive community and will endeavor to eliminate the use of ECL 1.0 if ECL 2.0 is approved. This could be achieved in as little as 6 months. 2. Our ultimate goal is to move to one of the popular licenses altogether and eliminate ECL. This will take some time, but a representative of Apache participated in our licensing summmit in November, and we hope to continue our dialogue with the Apache Foundation about the issues colleges and universities face in trying to use the current Apache licenses. We're hopeful that over some period of time, our community will bend a little, and the Apache license will evolve so that our community and the license converge. At this point we would do our best to retire ECL 2 altogether. 3. We cannot move to Apache 2.0 immediately due to the importance of contributor license agreements, the limitations on the claims universities are able to make in those CLAs, and the asymmetry created if our outbound license has claims more broad than our inbound licenses. Text version of ECL 2: Formatted version: or Kuali CCLA: Thank you for considering this request, -- Chris Coppola President, The rSmart Group Director, The Sakai Foundation Director, The Kuali Foundation Educational Community License, Version 2.0 Educational Community License Version 2.0, April 2007 TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION 1. Definitions. "License" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document. "Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License. "Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity. "You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License. "Source" form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files. "Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types. "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof. "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution." 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Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. Any patent license granted hereby with respect to contributions by an individual employed by an institution or organization is limited to patent claims where the individual that is the author of the Work is also the inventor of the patent claims licensed, and where the organization or institution has the right to grant such license under applicable grant and research funding agreements. No other express or implied licenses are granted. 4. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: You must give any other recipients of the Work or Derivative Works a copy of this License; and You must cause any modified files to carry prominent notices stating that You changed the files; and You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. 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You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License. 8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages. 9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability. END OF TERMS AND CONDITIONS APPENDIX: How to apply the Educational Community License to your work To apply the Educational Community License to your work, attach the following boilerplate notice, with the fields enclosed by brackets "[]" replaced with your own identifying information. (Don't include the brackets!) The text should be enclosed in the appropriate comment syntax for the file format. We also recommend that a file or class name and description of purpose be included on the same "printed page" as the copyright notice for easier identification within third-party archives. Copyright [yyyy] [name of copyright owner] Licensed under the Educational Community License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.osedu.org/licenses/ECL-2.0 Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License. |
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Re: For Approval: Educational Community License 1.0
by Matthew Flaschen
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Christopher D.Coppola wrote:
> I'm writing to request approval of the Educational Community License 2.0. ECL > 2.0 is intended to replace ECL 1.0 (http://www.opensource.org/licenses/ecl1.php) > and it is closely modeled after the Apache 2.0 license in an effort to reduce > the burdens of license proliferation. As far as I can tell, the addition of: "Any patent license granted hereby with respect to contributions by an individual employed by an institution or organization is limited to patent claims where the individual that is the author of the Work is also the inventor of the patent claims licensed, and where the organization or institution has the right to grant such license under applicable grant and research funding agreements. No other express or implied licenses are granted." is the only substantial change you made. Is this correct? With regarding the specific phrasing of that paragraph, it should probably say "affiliated with a Legal Entity" and "the Legal Entity has the right to grant". > First, while these > educational institutions want to encourage contributions to these projects > because they have the potential to be of enormous benefit to the entire higher > education community, many research institutions simply do not have the ability > to grant a patent license that will cover not only inventions by the individual > faculty who are contributing to these projects, but also faculty and staff that > have no involvement with the projects. This is exactly the issue cited by MIT in their proposal of the Broad Institute Public License (BIPL). I've CCed the people involved in that proposal. See http://crynwr.com/cgi-bin/ezmlm-cgi?3:map:11537:opjafloibeblhjfpaaih , http://crynwr.com/cgi-bin/ezmlm-cgi?3:mas:11575:opjafloibeblhjfpaaih , and http://crynwr.com/cgi-bin/ezmlm-cgi?3:mmn:11767 for example. BIPL is based on the Mozilla Public License with modifications to weaken the patent license. In particular, the last version (I think) had: "The license granted in this subsection shall be limited and superseded from time to time by any exclusive licenses in such Patent Claims granted by Initial Developer to third parties after the date of this license grant to You. Notwithstanding the foregoing, Initial Contributor shall not knowingly exclusively license the Patent Claims infringed by the exercise of the license granted under Section 2.1(a)." The BIPL didn't go over very well. I think people (sorry if I'm misrepresenting anyone here) objected to the idea that the very entity users were receiving open source software from was deliberately reserving the right to later take back a patent grant and sue (or allow someone else to sue) them for patent infringement. It was also pointed out that MIT has used (and indeed wrote) the MIT license (http://opensource.org/osi3.0/licenses/mit-license.php). Some people argued that the "use" word in that license is a clear implicit patent grant to all claims infringed by the software and owned by the licensor. It was even suggested that was part of /why/ MIT made the MIT license. Casual searches indicate other members of the Sakai coalition have used the MIT license (http://www.math.columbia.edu/~bayer/OSX/swapfile/license.html, http://weblogo.berkeley.edu/LICENSE, etc.). So it's difficult for me to agree you can't make broad patent grants when it seems you already are. However, your license is an improvement in at least one way. It doesn't allow the patent grant to be superseded after the fact if the university later makes an exclusive patent grant (supposedly by accident). It's an apparently irrevocable grant of licensable patents, but only for the individual developer(s) (not the whole university). It still has the enormous problem that it allows the university to sue the users/redistributors of its own program (if a separate patent is infringed), but it doesn't allow a grant to be taken back. Interestingly, MIT proposed an idea like this but never actually submitted a version of the license with it. Matthew Flaschen |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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That is correct Matthew. Your suggestion seems a little cleaner that what's there. I'll run it by a few other stakeholders. Is it generally agreed that a license like the MIT license implictly grants a patent license as you describe was pointed out? I'm not a lawyer, but in all my discussions with lawyers and others on this topic that's the first time I've heard that. One of the reasons we're wanting to improve our license is to make explicit patent grants. MIT and Berkeley have been very involved in these discussions. They are key contributors to our projects and I'm assuming, based on many conversations with them, that they did not believe (or understand) that their use of the MIT license implicitly does what you're suggesting. One other thing about these projects. They are somewhat unique in that an institution's participation in the projects and the commitment of resources (people and dollars) to the projects comes from institutional leadership that may be looking more closely at these kind of issues than previous involvement in open source that may have emerged bottom-up. Thanks for the comments. We realize that this isn't the ideal situation. We are also committed to working on the problem as a community. This interim step... Using an approved ECL 2.0 will be a big step in the right direction for our communities. /Chris |
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Re: For Approval: Educational Community License 1.0
by Matthew Flaschen
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Christopher D. Coppola wrote:
>> http://weblogo.berkeley.edu/LICENSE, etc.). So it's difficult for me to >> agree you can't make broad patent grants when it seems you already are. > Is it generally agreed that a license like the MIT license implictly > grants a patent license as you describe was pointed out? I'm not a > lawyer, but in all my discussions with lawyers and others on this topic > that's the first time I've heard that. I'm not a lawyer either, but that is what they've been telling me. :) For instance, Lawrence Rosen (who is on this list) has argued that. See http://rosenlaw.com/Rosen_Ch05.pdf . > One of the reasons we're wanting > to improve our license is to make explicit patent grants. That's a good idea. However, you don't want to move backwards. I just noticed that ECL 1.0 has "use" too. So arguably, you've licensed any such patents already. > MIT and Berkeley have been very involved in these discussions. They are key > contributors to our projects and I'm assuming, based on many > conversations with them, that they did not believe (or understand) that > their use of the MIT license implicitly does what you're suggesting. That's what I figured. The MIT attorney did somewhat object to the idea that the MIT license had a patent grant, but not too convincingly. > One other thing about these projects. They are somewhat unique in that > an institution's participation in the projects and the commitment of > resources (people and dollars) to the projects comes from institutional > leadership that may be looking more closely at these kind of issues than > previous involvement in open source that may have emerged bottom-up. I understand that. But perhaps they could take a lesson from these bottom-up projects, and the fact that exclusive patent deals haven't seemed to suffer. Matthew Flaschen |
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Re: For Approval: Educational Community License 1.0
by John Cowan
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Christopher D. Coppola scripsit:
> Is it generally agreed that a license like the MIT license implictly > grants a patent license as you describe was pointed out? Most people in the free software licensing community either think so or have no opinion on the subject, based on my latest finger-licking. The good people at MIT have denied that such an interpretation was intended by them, saying that it contravenes their long-established patent licensing policy. AFAIK, neither MIT nor any other licensor has sued for patent infringement (and a good thing too) in a situation where the question of implicit licensing might arise. > Thanks for the comments. We realize that this isn't the ideal > situation. We are also committed to working on the problem as a > community. This interim step... Using an approved ECL 2.0 will be a > big step in the right direction for our communities. I'd urge you to explicitly structure this as Apache 2.0 + limitation, as that it makes it much easier to understand. There's nothing like having to scan a long stretch of legalese, wondering just wherein it differs from a base license that you already understand. -- First known example of political correctness: John Cowan After Nurhachi had united all the other http://www.ccil.org/~cowan Jurchen tribes under the leadership of the cowan@... Manchus, his successor Abahai (1592-1643) issued an order that the name Jurchen should --S. Robert Ramsey, be banned, and from then on, they were all The Languages of China to be called Manchus. |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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This makes some sense. I'll consider it with some of the others in our community. My only hesitation is that we've had a 3 year campaign building common ground on the "Educational Community License" we have a lot of community education materials, and a bit of "brand recognition" in our community. For the sake of discussion on this list we could certainly consider it that way. /Chris. |
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Re: For Approval: Educational Community License 1.0
by John Cowan
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Christopher D. Coppola scripsit:
> This makes some sense. I'll consider it with some of the others in > our community. My only hesitation is that we've had a 3 year campaign > building common ground on the "Educational Community License" we have > a lot of community education materials, and a bit of "brand > recognition" in our community. I don't see any problem with keeping the branding, and just restructuring the internals of the license. So just as the LGPL 3.0 will be the GPL 3.0 plus additional permissions, the ECL 2.0 would be Apache 2.0 plus an additional limitation. Short, sweet, and to the point. -- The Unicode Standard does not encode John Cowan idiosyncratic, personal, novel, or private http://www.ccil.org/~cowan use characters, nor does it encode logos or graphics. cowan@... |
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Re: For Approval: Educational Community License 1.0
by Matthew Flaschen
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Grant Robertson wrote:
> Do all you people know that Creative Commons is currently gearing up > to develop a similar license which they call CC Learn? It looks like this is is more of a "framework" than an actual license. More importantly, this is a license meant for online educational content (like an online textbook). Educational Community License 2.0 is, like Apache 2.0, a software license. Creative Commons has said for a long time: "Creative Commons licenses are not intended to apply to software. They should not be used for software. We strongly encourage you to use one of the very good software licenses available today. The licenses made available by the Free Software Foundation or listed at the Open Source Initiative should be considered by you if you are licensing software or software documentation." > Since the other Creative > Commons licenses have become so popular, this might be a way for the > Educational Community License to become just as popular. Most Creative Commons licenses do not comply with the Open Source Definition, and none are approved by OSI. There is no reason we should want them to get popular. Matt Flaschen |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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John, et. al,
We had a chance to discuss the suggestion that we should mention in the ECL 2.0 that there is only one sentence that is different from the Apache 2.0 and that’s all folks need to consider if they are already familiar with the Apache 2.0 license. We think it’s a very helpful suggestion, and we are submitting a revised draft of the license that makes the change. The idea that there might be an implied patent license is an interesting one. If a contributor knew that a particular patent to which they held the rights would be infringed by their contribution, and failed to disclose the existence of the patent at the time of the contribution, it could well be that a court would find some form of implied patent license. But it’s hard to guess what a court would do in those circumstances. Our goal for the ECL v.2.0 -- and for the contribution agreements that support it, because Sakai, Kuali and the other projects that have adopted the ECL can only pass along whatever patent rights our contributors are willing to give -- is to include an express patent license that covers this scenario, so users don't have to speculate about what a court might do. While we might wish for a broader license that would cover all of the inventions coming out of an entire university or institution -- and indeed, we fought hard for as broad of a patent license as possible, both in our discussions with individual contributors and their institutions, and during the international summit on open source licensing in higher education that we organized -- many institutions just couldn’t agree with this because they felt that this would in effect force all of the inventors at that institution to be contributors to the project. As for the reference to existing grant and research funding agreements, just like the Apache 2.0 patent license that "applies only to those patent claims licensable by such Contributor," contributor institutions can only give us whatever rights are licensable by them. We are able to get comfortable with this language because we know the sources of funding for the development of these projects, and because we think the limitation to grant and research funding agreements makes our license, if anything, a little more specific than Apache 2.0 on this point. Here as well, we fought hard to make the patent license as broad as possible and keep any qualifications or limitating language to a minimum. Our hope is that OSI will agree the new license represents progress from ECL 1.0. Revised ECL 2.0 based on list discussions (I've simply added two sentences prior to the T&C's like I've seen done in other licenses: Educational Community License, Version 2.0 Educational Community License Version 2.0, April 2007 The Educational Community License version 2.0 ("ECL") consists of the Apache 2.0 license, modified to change the scope of the patent grant in section 3 to be specific to the needs of the education communities using this license. The original Apache 2.0 license can be found at: http://www.apache.org/licenses/LICENSE-2.0 TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION 1. Definitions. "License" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document. "Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License. "Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity. "You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License. "Source" form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files. "Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types. "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof. "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution." "Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work. 2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form. 3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution (s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. 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You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License. 8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages. 9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability. END OF TERMS AND CONDITIONS APPENDIX: How to apply the Educational Community License to your work To apply the Educational Community License to your work, attach the following boilerplate notice, with the fields enclosed by brackets "[]" replaced with your own identifying information. (Don't include the brackets!) The text should be enclosed in the appropriate comment syntax for the file format. We also recommend that a file or class name and description of purpose be included on the same "printed page" as the copyright notice for easier identification within third- party archives. Copyright [yyyy] [name of copyright owner] Licensed under the Educational Community License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.osedu.org/licenses/ECL-2.0 Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License. /Chris. On Apr 19, 2007, at 7:35 AM, John Cowan wrote: > Christopher D. Coppola scripsit: > > > This makes some sense. I'll consider it with some of the others in > > our community. My only hesitation is that we've had a 3 year > campaign > > building common ground on the "Educational Community License" we > have > > a lot of community education materials, and a bit of "brand > > recognition" in our community. > > I don't see any problem with keeping the branding, and just > restructuring > the internals of the license. So just as the LGPL 3.0 will be the > GPL 3.0 plus additional permissions, the ECL 2.0 would be Apache 2.0 > plus an additional limitation. Short, sweet, and to the point. > > -- > The Unicode Standard does not encode John Cowan > idiosyncratic, personal, novel, or private http://www.ccil.org/ > ~cowan > use characters, nor does it encode logos > or graphics. cowan@... > |
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Re: For Approval: Educational Community License 1.0
by John Cowan
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Christopher D. Coppola scripsit:
> We had a chance to discuss the suggestion that we should mention in > the ECL 2.0 that there is only one sentence that is different from > the Apache 2.0 and that?s all folks need to consider if they are > already familiar with the Apache 2.0 license. We think it?s a very > helpful suggestion, and we are submitting a revised draft of the > license that makes the change. Excellent. [discussion of implicit vs. explicit patent grants snipped] Hey, I'm all for explicit patent grants -- they make for clarity. I was simply pointing out that there is an informal interpretive tradition around the MIT license, namely that the appearance of the patent-grant verbs "use" and "sell" (two of the five traditional verbs "make, use, sell, offer for sale, import") estops any licensor from claiming a patent violation with respect to the software, since it is inconsistent to grant the right to use software while withholding a patent license essential for its use. And if the original licensor is estopped, their patent licensees are obviously also estopped. -- John Cowan cowan@... http://ccil.org/~cowan No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee. --John Donne |
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Re: For Approval: Educational Community License 1.0
by Brian Behlendorf
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On Mon, 30 Apr 2007, Christopher D. Coppola wrote:
> We had a chance to discuss the suggestion that we should mention in the ECL > 2.0 that there is only one sentence that is different from the Apache 2.0 and > that’s all folks need to consider if they are already familiar with the > Apache 2.0 license. We think it’s a very helpful suggestion, and we are > submitting a revised draft of the license that makes the change. Now it seems like a tractable effort for me to add my 2c. :) I think we can avoid needing to approve a new license here if the educational community in question is willing to make a change in how it measures contributions to the project. Here are the two lines added to clause 3: > Any patent license granted hereby with respect to contributions by an > individual employed by an institution or organization is limited to > patent claims where the individual that is the author of the Work is > also the inventor of the patent claims licensed, and where the > organization or institution has the right to grant such license under > applicable grant and research funding agreements. No other express or > implied licenses are granted. I am not a lawyer, this is not legal advice, but it does seem to me like you're unnecessarily pushing a detail of whose patents and copyrights you've collected on the front end (a purpose served by the various Contributor Agreements out there, like Apache's) into the license agreement on the back end. It also seems like there may be employers/institutions who would be happy to fulfill the obligations of a Contributor. Do this instead. Within your project, for those employers who can not go along with the obligations of being a Contributor, establish that the Contributor is actually the individual, warranting on their own that their contributions are their work and they can personally fulfill the obligations of contributorship. In other words, take their employers out of the equation. That way their employers are not bound by the patent commitment or any other. Since employment law usually acrues the IP ownership of works created on employer (or on employer hardware) to the employer, what would be required is a waiver or grant between employer and individual Contributor that says that the Contributor owns the copyright and patent rights on works they create on employer time. The employer can then ask the employee to grant back to the employer the unlimited rights of redistribution, etc., that would normally exist if the employer was copyright holder. A Contributor doesn't even technically need to be the IP owner; they just need to have the required rights to grant. The qualitative difference to an end user is that even if the project says "built with the help of developers working for University X", there is no longer the assurance that they won't be sued down the road as end-users by University X for something related to that very same code. You'd owe it to your users to get very specific about who those Contributors were - perhaps publicly publishing the list of who signed contributor agreements. It's a repeal of patent self-defense a bit, but I guess universities are used to that. I think this approach still protects the project against submarined patents, too. Again, IANAL, but if this wouldn't work exactly, something close to it must. Brian |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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Brian,
Thanks for your thoughtful comments. We pursued this idea during the Summit we held on licensing among our community. Unfortunately we could not get agreement from some of the key members of our community (key contributors). Specifically it was cited that this approach would be inconsistent with CA law relating to ownership of IP created with state funds. /Chris. On Apr 30, 2007, at 12:58 PM, Brian Behlendorf wrote:
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Re: For Approval: Educational Community License 1.0
by Brian Behlendorf
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Huh - one would think laws about IP created with state funds would be even easier to work into this model, as it would presumably either assign ownership to the state, or specify that it be "public domain", or otherwise liberally licensed - in any case further separating the academic institution's other IP (that they are interested in excluding from this pool) from the open source project. I just can't wrap my head around the idea that making the scope of the patent rights less clear for recipients (placing the burden on them to determine who the employers of contributors are, and whether the contributions were on the clock or off, etc) is an improvement that merits certification as a new open source license - even aside from the lack of empathy I feel for IP holders who own so much IP they can't even be burdened to enumerate any that might apply to their contributions. :) A license like this would seem to significantly weaken the value of the software for new users - a new university wishing to use it would now have greater worries about legal jeopardy from the organizations sponsoring the work. Given the precedent set and worries about the Blackboard patent, I would have expected academic institutions lean towards greater protections rather than fewer. Brian On Mon, 30 Apr 2007, Christopher D. Coppola wrote: > Thanks for your thoughtful comments. We pursued this idea during the Summit > we held on licensing among our community. Unfortunately we could not get > agreement from some of the key members of our community (key contributors). > Specifically it was cited that this approach would be inconsistent with CA > law relating to ownership of IP created with state funds. > > /Chris. > > > > On Apr 30, 2007, at 12:58 PM, Brian Behlendorf wrote: > >> On Mon, 30 Apr 2007, Christopher D. Coppola wrote: >>> We had a chance to discuss the suggestion that we should mention in the >>> ECL >>> 2.0 that there is only one sentence that is different from the Apache 2.0 >>> and >>> that’s all folks need to consider if they are already familiar with the >>> Apache 2.0 license. We think it’s a very helpful suggestion, and we are >>> submitting a revised draft of the license that makes the change. >> >> Now it seems like a tractable effort for me to add my 2c. :) >> >> I think we can avoid needing to approve a new license here if the >> educational community in question is willing to make a change in how it >> measures contributions to the project. Here are the two lines added to >> clause 3: >> >>> Any patent license granted hereby with respect to contributions by an >>> individual employed by an institution or organization is limited to >>> patent claims where the individual that is the author of the Work is >>> also the inventor of the patent claims licensed, and where the >>> organization or institution has the right to grant such license under >>> applicable grant and research funding agreements. No other express or >>> implied licenses are granted. >> >> I am not a lawyer, this is not legal advice, but it does seem to me like >> you're unnecessarily pushing a detail of whose patents and copyrights >> you've collected on the front end (a purpose served by the various >> Contributor Agreements out there, like Apache's) into the license >> agreement on the back end. It also seems like there may be >> employers/institutions who would be happy to fulfill the obligations of a >> Contributor. >> >> Do this instead. Within your project, for those employers who can not go >> along with the obligations of being a Contributor, establish that the >> Contributor is actually the individual, warranting on their own that their >> contributions are their work and they can personally fulfill the >> obligations of contributorship. In other words, take their employers out >> of the equation. That way their employers are not bound by the patent >> commitment or any other. >> >> Since employment law usually acrues the IP ownership of works created on >> employer (or on employer hardware) to the employer, what would be required >> is a waiver or grant between employer and individual Contributor that says >> that the Contributor owns the copyright and patent rights on works they >> create on employer time. The employer can then ask the employee to grant >> back to the employer the unlimited rights of redistribution, etc., that >> would normally exist if the employer was copyright holder. >> >> A Contributor doesn't even technically need to be the IP owner; they just >> > need to have the required rights to grant. >> >> The qualitative difference to an end user is that even if the project says >> "built with the help of developers working for University X", there is no >> longer the assurance that they won't be sued down the road as end-users by >> University X for something related to that very same code. You'd owe it >> to your users to get very specific about who those Contributors were - >> perhaps publicly publishing the list of who signed contributor agreements. >> >> It's a repeal of patent self-defense a bit, but I guess universities are >> used to that. I think this approach still protects the project against >> submarined patents, too. >> >> Again, IANAL, but if this wouldn't work exactly, something close to it >> must. >> >> Brian >> > |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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Brian,
Thanks for engaging in this conversation and helping to think through the best solution. I hope you understand we've put a great deal of effort into making the progress we have. Though we agree the ECL 2.0 proposal isn't a home run, we do think it's a significant improvement over the currently approved ECL 1.0 which we would end up having to stay on if 2.0 is not approved. I'm curious about a comment you made... I just can't wrap my head around the idea that making the scope of the It seems to me that with ECL 2.0 we're making the situation much more clear. Today it's anyone's guess whether or not any given patent held by the individual contributor or institution might be licensed. ECL 1.0 makes no such claims and we're unsuccessful getting full compliance on the inbound (contribution agreement side because of this hang-up with many of the universities involved)... with ECL 2.0 and the accompanying contribution agreements we make it clear on the outbound side (ECL 2.0) that patents are licensed for the scope of work intended to be contributed. We consider this a big step in the right direction. That said, we're eager to simply adopt the Apache license without modifications and we'll be working toward this as a next step. Keep in mind that what we're requesting isn't a new license--it's a replacement, and it's really not intended for general use. Our license falls into the Special Purpose category because at present we clearly have some unique challenges as a community. That said, we're a very tight community. We do a good job of moving forward together. We have very clearly defined practices for license and IP management and a track record of very good performance using those practices to achieve great compliance on contributed and 3rd party code. All things considered, OSI approval of ECL 2.0 is a big step forward for our community, and for license proliferation. Without approval we'd necessarily need to stay with ECL 1.0 which negates the benefits of our diligent contribution agreement practices and does nothing for patent grants. There's also no good path from ECL 1.0 to a more popular license. We believe that ECL 2.0 (which is easily characterized as Apache 2.0 plus patent grant changes) gives us a path to adopting a popular license (Apache 2.0) in the future and eliminating ECL altogether. Please consider our unique situation and the cohesiveness of our community in this request. Thanks, /Chris. On May 1, 2007, at 10:29 AM, Brian Behlendorf wrote:
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Re: For Approval: Educational Community License 1.0
by Matthew Flaschen
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Christopher D.Coppola wrote:
> Without approval we'd necessarily need to stay > with ECL 1.0 which negates the benefits of our diligent contribution > agreement practices and does nothing for patent grants. As I mentioned earlier, the word "use" in ECL 1.0 arguably constitutes a broad patent grant. So from this perspective ECL 2.0 does grant less. Matt Flaschen |
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Re: For Approval: Educational Community License 1.0
by cdcoppola
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I understand that interpretation exists, but I also understand that not everyone agrees with it. Relying on the "use" language leaves it up to interpretation that seems to have generated equally reasonable opinions on either side of the argument which makes it pretty risky to depend on. It may be that a court would agree, it may be that a court would disagree. It may be that it depends on the circumstances around the contribution. This situation seems risky to me, and it seems that being explicit has a lot of value. While it may not be as "potentially" broad, it is clearly specified. I know what I can reasonably count on.
/Chris. On May 7, 2007, at 11:37 AM, Matthew Flaschen wrote:
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Re: For Approval: Educational Community License 1.0
by Ben Tilly
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On 5/7/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Christopher D.Coppola wrote: > > Without approval we'd necessarily need to stay > > with ECL 1.0 which negates the benefits of our diligent contribution > > agreement practices and does nothing for patent grants. > > As I mentioned earlier, the word "use" in ECL 1.0 arguably constitutes a > broad patent grant. So from this perspective ECL 2.0 does grant less. Is it better to possibly grant more, or to clearly grant less? Preferences may differ, but I prefer the latter. Because lawsuits arise more readily out of lack of clarity than they do out of lack of generosity. Consider the following situation. Party A at an educational institute gets a patent. Party B at the same institute, not knowing of party A's work, puts out software under the ECL that infringes on A's patent. Party C elsewhere extends party B's software. Party A notices party C and asks them to desist. If this happens under the ECL 1.0, then C may believe they have an implied license to the patent. So C thinks they are OK and can ignore A. Unfortunately for C, A might win either because the judge disagrees with C's interpretation, or the judge agrees with the interpretation but says that B had no authority to give that permission. So here we could be headed towards confrontation that can easily escalate into a lawsuit. If this happens under the ECL 2.0, then C will quickly realize that they really don't have a license for that patent. C can point to B's work and demonstrate that the infringement was unintentional. And before anything escalates all parties understand that C doesn't have a leg to stand on, but had no intention of doing A any wrong. This is much more likely to resolve itself peacefully. I am not a lawyer and can speak for nobody else, however I like the sounds of the second scenario much better than the first. (Of course I'd prefer the scenario where party A cannot get a patent on software at all, but a copyright license must work within the existing legal system and not in a parallel system of its own invention.) Cheers, Ben |
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Re: For Approval: Educational Community License 1.0
by John Cowan
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Brian Behlendorf scripsit:
> I don't see what you've suggested as being unique to the educational > field - lots of large companies claim that it's impossible for them to > keep track of their own IP, at first. Lots of them have complex R&D > projects that bind the resulting IP to exclusive licensing arrangements. Indeed, I would be very leery of accepting an exclusive licensing arrangement from anyone who would publicly admit to such administrative incompetence. What surety is there that the patent I have licensed, supposedly exclusively, has not already been licensed exclusively to someone else? Suing the university or company would be small satisfaction. -- Barry gules and argent of seven and six, John Cowan on a canton azure fifty molets of the second. cowan@... --blazoning the U.S. flag http://www.ccil.org/~cowan |
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