License Discussion for the Broad Institute Public License (BIPL)

[Philippe Verdy]

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 at MIT.EDU>
To: "'Brendan Scott'" <lists at opensourcelaw.biz>
Cc: <license-discuss at opensource.org>; "'Karin Rivard'" <rivard at 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 at 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?