For Approval: ECL 2.0

[Christopher D. Coppola]

I'm writing to summarize the discussion to-date on approval of ECL  
2.0 with the objective of bringing the conversation around to a  
decision point.

First, let me repeat the key points of my initial post:

Our request is for approval of the Educational Community License 2.0,  
which is a successor to ECL 1.0.

Relevant highlights:

1. "Net Zero Impact on license proliferation within 6 months" - The  
approval will result in a net zero impact on the number of OSI  
approved licenses. To the best of our knowledge the ECL 1.0 is only  
used by communities in Education which have been closely coordinated.  
All involved will switch to ECL 2.0 as soon as it's approved and then  
ECL 1.0 can be de-commissioned. We expect this would happen within 6  
months.

2. Ambiguity, lack of explicit patent grants, and ineffective use of  
contributor agreements are our primary drivers for upgrading the  
license. Original post: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss: 
12705:200704:pinhehafopjimikjkpki

3. A core part of our IP management practices include using  
contributor license agreements. Our CLA's are based on Apache's CLA's  
with one change to limit the scope of patent grants. This is a  
requirement for the large research universities involved in our  
projects at present. This is the reason *we cannot simply adopt the  
Apache license and CLA's." We have been working with institutional  
counsel for 2 years. Though we are making progress, it is likely to  
take years to change the IP policies of major universities like  
University of California and MIT.

The issues raised in the license-discuss thread with our request for  
approval boil down to two

Issue #1:  We should make it more clear that the ECL 2.0 is really  
just the Apache 2.0 with a modified patent license section. We agreed  
with this and have made a change to the license we believe  
accomplishes the goal:
https://www.collabtools.org/access/content/user/chris.coppola% 
40rsmart.com/ECL2.0.doc

Issue #2: The ECL 2.0 limits the scope of the patent license and this  
is generally not the best thing for the community. We agree with  
this, but our proposal is the best alternative available to us. The  
conversation has essentially revolved around the notion that there  
*may* be an implicit patent license in ECL 1.0 that these same  
institutions are currently agreeing to.

The idea that there might be an implied patent license is an  
interesting one. If a contributor knew that a particular patent to  
which they held the rights would be infringed by their contribution,  
and failed to disclose the existence of the patent at the time of the  
contribution, it could well be that a court would find some form of  
implied patent license.  But it’s hard to guess what a court would do  
in those circumstances. Our goal for the ECL v.2.0 -- and for the  
contribution agreements that support it, because Sakai, Kuali and the  
other projects that have adopted the ECL can only pass along whatever  
patent rights our contributors are willing to give -- is to include  
an express patent license that covers this scenario, so users don't  
have to speculate about what a court might do. While we might wish  
for a broader license that would cover all of the inventions coming  
out of an entire university or institution -- and indeed, we fought  
hard for as broad of a patent license as possible, both in our  
discussions with individual contributors and their institutions, and  
during the international summit on open source licensing in higher  
education that we organized -- many institutions just couldn’t agree  
with this because they felt that this would in effect force all of  
the inventors at that institution to be contributors to the project.

It is important to us that we have contributor license agreements  
which provide explicit copyright and patent licenses to each  
contribution. If ECL 2.0 is not approved, we will be forced to stick  
with ECL 1.0 which give us no ability to leverage CLA's for many of  
our key contributors. This surely isn't the best alternative for our  
communities.

In summary, we are respectfully requesting that ECL 2.0 be approved.  
Of two issues raised, we addressed one as suggested, and the other  
we've provided compelling reasoning why it cannot be addressed at  
this point. We intend to remain vigilant on the matter and eventually  
hope these projects and our efforts will effect a reform in  
institutions' IP policies. This is going to take years, but once  
we've succeeded, we would endeavor to move to a popular license such  
as the Apache 2.0 license.

Respectfully,
/Chris.



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