For Approval: Educational Community License 1.0

[Ben Tilly]

On 5/7/07, Matthew Flaschen <matthew.flaschen at gatech.edu> 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