Subject: Re: For Approval: Educational Community License 1.0
From: Matthew Flaschen <matthew.flaschen@gatech.edu>
Date: Thu, 19 Apr 2007 02:44:10 -0400

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"The license granted in this subsection shall be limited and superseded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