[License-review] Approval: BSD + Patent License
mccoy.smith at intel.com
Thu Jan 14 22:42:13 UTC 2016
Actually, the term "copyright holders and contributors" comes from BSD 2-clause:
Copyright (c) <YEAR>, <OWNER>
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
THIS SOFTWARE IS PROVIDED BY THE *COPYRIGHT HOLDERS AND CONTRIBUTORS* "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE *COPYRIGHT HOLDER OR CONTRIBUTORS* BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
I think, in the minds of the drafters of BSD (who I don't know), the "copyright holders" were the original persons or entities that created the code, and the "contributors" were those that made subsequent modifications or additions to that code. I tried to preserve that language from BSD (and my interpretation of the thinking) in the draft of the patent license.
I don't think anyone has argued that the use of "contributors" in BSD requires a contributor license agreement (particularly since BSD predates the common usage of CLAs), so I tended to want to follow the language of BSD 2-clause as much as possible in putting this together (since the idea was truly to preserve BSD intact, and add on the patent grant).
I'm not completely wedded to that language, though, and limiting everything to "copyright holders" might make the language itself somewhat more concise.
From: License-review [mailto:license-review-bounces at opensource.org] On Behalf Of Richard Fontana
Sent: Thursday, January 14, 2016 1:42 PM
To: License submissions for OSI review
Subject: Re: [License-review] Approval: BSD + Patent License
On Wed, Jan 13, 2016 at 06:57:00PM +0000, Smith, McCoy wrote:
> We believe that this license is non-duplicative (for the reasons set
> forth above), as it solves an issue all but one OSI-approved license
> solves (permissive, express patent license grant, GPLv2
> compatibility). The license itself is a combination of language from
> the BSD 2-clause license, the Apache 2.0 license, and the Eclipse
> Public License (all of which are already OSI-approved, and all of
> which are in the category of “Licenses that are popular and widely
> used or with strong communities”). It therefore should meet all the
> criteria of the OSD.
I basically like this proposed license. I do have one concern. You have understandably reused text from the Apache License 2.0.
The patent license language is granted by "Each copyright holder and contributor". Later on, however, I note that the language fixing the claims that are licensed assumes that anyone granting the patent license is a copyright holder.
The latter language is fine; there's a specific reason why the references to "contributors" bothers me.
OpenStack is an Apache License 2.0 project. Over the past couple of years the OpenStack Foundation and OpenStack technical community discussed the issue of whether and to what extent to replace the CLAs used by OpenStack with the DCO (recently resolved through a compromise whereby the individual CLA has been eliminated but the corporate CLA retained). Mostly in the context of my role at Red Hat, I happened to be a strong supporter of the view that OpenStack would be better off without either of those CLAs.
Mark Radcliffe, general counsel of the OpenStack Foundation, has argued that the text and drafting history of the Apache License 2.0 indicate that it was intended to be used with (Apache-style) CLAs. The use of the term 'contributor' in the Apache License is, I think, a partial basis of this argument. (At a later stage Mark actually recommended the compromise approach which the OpenStack Foundation adopted, under which non-affiliated individuals contributing to OpenStack would not be required to sign a CLA.)
I do not agree with Mark's interpretation of the Apache License (or, the way I might put it is, any basis for the interpretation has been nullified by years of entrenched industry practice around use of the Apache License, as most Apache License code is directly released by copyright holders under the Apache License rather than via a CLA-based sublicensable license to a foundation).
I also happen to believe that *if* a license actually requires the use of a CLA to be operative, it is inconsistent with the Open Source Definition. This would suggest that if Mark's interpretation of the Apache License is correct, and if my interpretation of the OSD is correct, the OSI would need to de-list the Apache License.
So my concern is that by using the 'contributor' language, unnecessarily I believe, from the Apache License, you are setting up the possibility that someone will argue down the road that this BSD + Patent license must normally be used with a CLA, and in particular a CLA that has certain features in common with those used by the Apache Software Foundation.
Mark is also general counsel to the OSI.
Also I believe this interpretation is largely inconsistent with the Apache Software Foundation's own practice, whatever the original drafters of the Apache License 2.0 may have been contemplating.
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