[License-review] Request for Approval of Universal Permissive License (UPL)

[Christopher Sean Morrison]

On Sep 9, 2014, at 9:27 AM, license-review-request at opensource.org wrote:

> Date: Wed, 3 Sep 2014 09:02:25 -0700
> From: Jim Wright <jim.wright at oracle.com>
> 
>> * Can I remove the names of Larger Works from an inherited LARGER_WORKS
>> file if I want to?  Can I remove the whole file?
> 
> You need to think carefully about what you're trying to achieve here, as you probably don't want to purport to alter the grant from the original authors (though again, you can relicense the whole thing on other terms if you want, and removing the larger works designation is one of those possibilities - I'm just not sure this is preferred).  If one wanted to make modifications and not distribute them subject to the same license scope, you can either relicense the whole thing as desired or better yet, simply add another license for your own additions (either the UPL with a Larger Works file covering something different, or nothing at all, or an entirely different license).  The trick to remember is that you obviously cannot extend the breadth of the license offered by others (so you can't, e.g., add new things to the Larger Works file and expect that this binds prior contributors).

I don't think anyone would expect any change to that file would extend the scope of a granting from the original licensor.  I saw Josh's question as coming from a developer perspective.  If I came across UPL product X with a larger works that states product X and all derivative works in the larger works file are covered (or the UPL gets reworded so that is the default, so as no new claims are infringed), then what happens when I rework product X into a substantially different product Y. 

I rename every bdlyfnmdfnctn to betterNamedFunction, eliminate half of the cruft I didn't need, and make it run 1000 times faster without infringing any new claims.  What happens if I modify the Larger Works file (e.g., remove the product X listing) or remove the file altogether?  What if I change it to say "all derivative works except product X"?  Did I just give up the grant from the original author on their claims?  Did I prevent product X from incorporating my awesome performance improvements?  What if I've patented the technique I used in those enhancements and I want everyone except product X to be able to incorporate them?  What does changing that file do, legally speaking, when a resulting allowed derivative is very dissimilar from the original?

>>> The feedback I got from the community here
>>> is that patent holders will not agree to a scope which licenses all their
>>> patents for any arbitrary modification,

You originally raised that concern, not the community here.  I for one think that should be the default of a license entitled "universally permissive" so long as the derivative changes do not infringe on *other* claims that were never granted.

>>> and in fact would be nervous
>>> about a license which could possibly be interpreted this way, thus the
>>> clarification - of course, you still *could* apply the license this way by
>>> simply stating that all derivative works are covered (and thanks in
>>> advance if you do ;-), which would be even broader than I intended the
>>> original draft.

The default could also be to make that interpretation explicit and let the licensor reduce their granting scope to not extend to derivatives.

>> What you want to say is that while derivative works are allowed, no
>> patent grants (or other rights?) are given to the new functionality.
>> Currently the text doesn't say that. It says that derivative works are
>> only allowed "provided that this does not" X, where X is likely to
>> always be true. In other words the words "provided that" is what I
>> have an issue with. The right to do derivative works in itself should
>> always be allowed.

This!

>> The base text unambiguously says that you have the right to create derivative works.  This is a grant under one of the enumerated copyright rights, but one which in a vacuum might in theory also be read to extend the patent grant to new claims otherwise infringed by those derivatives.  (I did not read the original version this way but since a couple of others questioned it, I thought it worth clarifying.)  The parenthetical states that this copyright license grant does not in fact extend the patent license grant in such a fashion.  It does not say or imply that the copyright license grant to create derivative works is otherwise limited in any way by that limitation on the scope of the patent grant - the X in your statement is not a true or false condition that gates the copyright grant, it's a clarification of the scope of another, separate bundle of rights.  It's like me giving you my keys and saying you have the right to drive my car for the day, provided that this grant does not grant you the right to use other keys on my keyring to say, enter my home or use my bicycle - these two things are simply not inconsistent with each other.

Great, a car analogy!  Actually, you gave me the keys to your car AND your car, said I can modify the car, but only said "I can use the keys on your car".  Can I change out the engine, wheels, and paint it pink (assuming that engine, wheels, and pink paint don't infringe on anything else you've patented) and sell/give that car to someone else?

The current text would lead me to believe that's a "NO, because I didn't say so in the larger works file."  You only said I could use the keys on "your" car (even though you gave it to me and said I could mod it).  What I made no longer looks anything like your car.  You don't want me putting your keys in anything that doesn't look exactly like your car.  That would be a pretty crappy situation and sounds like the default.

Cheers!
Sean