[License-review] Approval: BSD + Patent License

Smith, McCoy mccoy.smith at intel.com
Fri Jan 15 18:57:53 UTC 2016

I’m somewhat skeptical of the approach of copyrighting a license (especially this one, which is a mere amalgam of language from other licenses) or trademarking its name (especially this one, as I chose the name to convey descriptively what it is – BSD, plus a patent license), as I think using IP infringement as a mechanism to enforce uniformity is not particularly efficient.  And a new name unique enough to merit trademark rights tends to not convey to the potential user what the license is about.

There are a ton of BSD variants, and a few Apache ones, and even some GPL ones (including ones that include what I believe to be additional restrictions which the GPL doesn’t permit).  Trying to chase those down and stop their use seems like an exercise in whack-a-mole.  I tend to think that the best mechanism is for the user to simply compare with the canonical version on the OSI website (either manually, or through the various tools that do those sorts of things), and if you come upon a variant, decide if you can live with the variant or only want the canonical version (and I know in some cases when you ask the author using a non-canonical variant to relicense under a canonical version, they sometimes will).  I also tend to think the OSI imprimatur does have the beneficial effect of causing most people to choose the approved canonical version versus forking their own, which is enough of a control mechanism for most important cases.  And there is also the community enforcement angle – if enough users say they don’t like a non-canonical variant, that variant’s use becomes moribund, and it dies (or is killed).  For example:  https://opensource.org/licenses/intel-open-source-license.php

So for this one, I think asserting a copyright or trademark and adding additional terms about making variants gets it away from the special purpose for which it was drafted.  I can, however, see the benefit for those licenses with more originality to them.

From: License-review [mailto:license-review-bounces at opensource.org] On Behalf Of Lawrence Rosen
Sent: Friday, January 15, 2016 9:04 AM
To: 'License submissions for OSI review'
Subject: Re: [License-review] Approval: BSD + Patent License

Hi McCoy and Mike,

While we do want to avoid random and often incomprehensible changes to our software licenses, the effective solution is not to place a copyright notice on something that is probably not copyrightable. Even though, that's what I did anyway myself, hoping to scare people. :-)  Perhaps trademark protection for its name is more appropriate?

I struggled with that problem with AFL/OSL, mostly after critics complained that I was selfishly reserving for myself the right to steward the text of a FOSS license. On the other hand, at that time, I didn't trust OSI to steward it for me.

So here's what I wrote, in the form of an express license condition:

16) Modification of This License. This License is Copyright © 2005 Lawrence Rosen. Permission is granted to copy, distribute, or communicate this License without modification. Nothing in this License permits You to modify this License as applied to the Original Work or to Derivative Works. However, You may modify the text of this License and copy, distribute or communicate your modified version (the "Modified License") and apply it to other original works of authorship subject to the following conditions: (i) You may not indicate in any way that your Modified License is the "Academic Free License" or "AFL" and you may not use those names in the name of your Modified License; (ii) You must replace the notice specified in the first paragraph above with the notice "Licensed under <insert your license name here>" or with a notice of your own that is not confusingly similar to the notice in this License; and (iii) You may not claim that your original works are open source software unless your Modified License has been approved by Open Source Initiative (OSI) and You comply with its license review and certification process.


From: Mike Milinkovich [mailto:mike.milinkovich at eclipse.org]
Sent: Friday, January 15, 2016 8:15 AM
To: license-review at opensource.org<mailto:license-review at opensource.org>
Subject: Re: [License-review] Approval: BSD + Patent License

On 13/01/2016 1:57 PM, Smith, McCoy wrote:


This license should be categorized as a “Special Purpose License,” or, alternatively, as an approved variant of the BSD 2-clause license.


I also like the direction that proposal is going in. I believe that such a license has the potential to be very useful and popular. Thank you for taking the initiative to put this together.

One criticism of the BSD-style license that I have heard in the past is that because it is an editable template, downstream consumers have an added compliance burden to ensure that the version that they are looking at is, in fact, an exact copy of the BSD.  Have you considered giving this license a name, and copyrighting it to help alleviate this issue? I would guess that some text similar to what I've pasted below from the EPL would be required. I am not sure who could be the license steward. I would suggest the OSI itself, but I don't know if that is too radical a departure from past practice.
Everyone is permitted to copy and distribute copies of this Agreement, but in order to avoid inconsistency the Agreement is copyrighted and may only be modified in the following manner. The Agreement Steward reserves the right to publish new versions (including revisions) of this Agreement from time to time. No one other than the Agreement Steward has the right to modify this Agreement. The <<some organization>> is the initial Agreement Steward. The <<some organization>> may assign the responsibility to serve as the Agreement Steward to a suitable separate entity. Each new version of the Agreement will be given a distinguishing version number. The Program (including Contributions) may always be distributed subject to the version of the Agreement under which it was received. In addition, after a new version of the Agreement is published, Contributor may elect to distribute the Program (including its Contributions) under the new version.

Mike Milinkovich
Eclipse Foundation and OSI Director
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