Subject: Re: License Discussion for the Broad Institute Public License (BIPL)
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Fri, 12 May 2006 01:10:37 +0200

 Fri, 12 May 2006 01:10:37 +0200
My feeling about this issue isthat if the MIT cannot guarantee that its BIPL-licence
software does not contain any material covered by a non-free patent, then the BIPL itself
is definitely not free software. This licence does not merit to be approved as an open-source
licence either, because users still need to look themselves for possible patents covering
the software.

This licence looks like something that says "we grant you the right to look at the source,
but if you want to republish this software, be prepared (you or your sublicensees) to
pay royaltees for the MIT-owned patents". MIT does not offer a licence that provides
the right todistribute the software, and this licence is more like a non-disclosure
agreement between you and the MIT, usable only for private uses (and even in that case,
if you intendto use it on large scale within your internal premises or organization,
then you are liable to pay for the royaltees due to MIT patent claims).

Such licence (which hides hidden costs) would be inacceptable for standardization organisms
like the W3C that *requires* a FULL disclosure of all materials covered by the licensor,
and *requires* to fully describe a way to get a complete and valid licence to use it
on fair royaltees. Without such a guarantee, this licence is worse than ISO or W3C standard
licences, and is a armed canon to kill competition with later patent claims on a software
that was apparently obtained legally with a licence from the same licensor. This licence
is then invalid.

So either the MIT analyzes itself the material covered by those licences, and describes
whichusages are permitted, or it should never licence it. If the intent of the MIT is
to offer licences for free to other educational or non-profit organizations, then it
should explicitly describe that the licence is valid only for them (as a consequence,
the licence will NOT be open to any one, and does not qualify either as Open-Source
with the OSI definition, and not even as free software with the FSF definition, because
of the restrictionsabout who can get a valid licence).

My feeling is that the MIT should better offer a licence similar to sharewares if it
wants to keep and profit from its own patents: the software is licenced for free (means:
no payment needed) for educational purpose, but not for private organizations that must
be able to pay to get a complete and valid licence that also covers the right to use
the MIT-patented material contained in the software. Things would be much clearer for
everybody.

----- Original Message ----- 
From: "Rory Pheiffer" <rpp@MIT.EDU>
To: "'Brendan Scott'" <lists@opensourcelaw.biz>
Cc: <license-discuss@opensource.org>; "'Karin Rivard'" <rivard@mit.edu>
Sent: Thursday, May 11, 2006 2:58 PM
Subject: RE: License Discussion for the Broad Institute Public License (BIPL)


> Hi Brendan,
> 
> Thank you for your inquiry.  I understand your concern and hope that I can
> clear this issue up some for you.
> 
> MIT owns patents for the sole purpose of encouraging commercial development
> of the technology through licensing.  The issue for MIT is one of control
> over enforcement of the patents.  MIT owns over 2000 patents in the US alone
> and many more worldwide.  Most of those patents are licensed to companies or
> are intended to be licensed to companies.
> (...)
> -----Original Message-----
> From: Brendan Scott [mailto:lists@opensourcelaw.biz] 
> The wording of the MPL aside, if MIT owns the patents, on what basis can it
> deny a licence over them?  That is, if use of the software necessarily
> requires an exercise of the patent, and MIT grants a licence to use the
> software, how can you maintain that there is no licence over the patent?