Subject: Re: For Approval: Educational Community License 1.0
From: Brian Behlendorf <brian@collab.net>
Date: Mon, 30 Apr 2007 12:58:29 -0700 (PDT)
Mon, 30 Apr 2007 12:58:29 -0700 (PDT)
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