For Approval: Educational Community License 1.0

[Brian Behlendorf]

On Mon, 7 May 2007, Christopher D. Coppola wrote:
> I'm curious about a comment you made...
>
>> I just can't wrap my head around the idea that making the scope of the
>> patent rights less clear for recipients (placing the burden on them to
>> determine who the employers of contributors are, and whether the
>> contributions were on the clock or off, etc) is an improvement that merits
>> certification as a new open source license -
>
> It seems to me that with ECL 2.0 we're making the situation much more clear.

I meant in comparison to the Apache license, and being able to consult a 
public list of contributors to an Apache-licensed project.

> Today it's anyone's guess whether or not any given patent held by the 
> individual contributor or institution might be licensed. ECL 1.0 makes no 
> such claims and we're unsuccessful getting full compliance on the inbound 
> (contribution agreement side because of this hang-up with many of the 
> universities involved)...

Which certainly is not an unfamiliar story - there's a similar reaction
when corporations first look at the Apache contributor agreement.  At some
point they realize that their own use of the technology typically vastly
outsizes their potential contributions, and that they get a whole lot of
quid for comparatively little quo, and can scope that quo further through 
the contributor agreement.

> with ECL 2.0 and the accompanying contribution agreements we make it 
> clear on the outbound side (ECL 2.0) that patents are licensed for the 
> scope of work intended to be contributed. We consider this a big step in 
> the right direction. That said, we're eager to simply adopt the Apache 
> license without modifications and we'll be working toward this as a next 
> step.

That's great!

> Keep in mind that what we're requesting isn't a new license--it's a 
> replacement, and it's really not intended for general use.

The problem with that thinking is that one goal for Open Source licenses 
and software is the creation of a software commons from which other 
projects can draw, regardless of purpose or origin.  If you come up with a 
cool new end-user-friendly collaborative document editing tool, a license 
with subtle incompatibilities (even OSI-licensed) will tend to inhibit the 
kinds of external contributions that could really make a difference.

> Our license falls into the Special Purpose category because at present 
> we clearly have some unique challenges as a community.

I don't see what you've suggested as being unique to the educational field 
- lots of large companies claim that it's impossible for them to keep 
track of their own IP, at first.  Lots of them have complex R&D projects 
that bind the resulting IP to exclusive licensing arrangements.  That this 
is happening in academia is a result of the game-theory disaster that 
patent precedents and Bayh-Dole created - there's a mad rush to patent as 
much as possible, and then exclusively license to generate revenue for the 
campus.  I'm not unsympathetic to the needs of universities for funding, 
but if they're going to become arms of corporate R&D departments, then 
being able to keep track of the IP they create and keep their own 
developers appraised of such seems like the least one can ask for - or at 
the very least, to consider a contributor agreement that provides the 
scoping they feel they need.

 	Brian