[License-review] New Exhibit A for EPLv2

[Mike Milinkovich]

On 2017-09-15 12:22 PM, Tom Marble wrote:
> Mike Milinkovich<mike.milinkovich at eclipse-foundation.org>  writes:
>> [...] The original version stated that
>> “This Source Code _*is *_also Distributed [...]
> I'm struggling to understand how the license text regarding
> Secondary Licensing works in context of your statements here:
>
> https://lists.opensource.org/pipermail/license-review/2017-June/003051.html
>
> Regarding point 1 it seems that the "Initial Contributor" has
> the outsized authority to add Exhibit A, but that could happen
> at any time (i.e. there's no requirement in the EPL 2.0 condition
> for adding Exhibit A "when they start").
>
> Point 2 seems to be inconsistent to the language of the license.
> The license suggests that if the "Initial Contributor" adds
> Exhibit A then "then the Program may be made available under the
> terms of such Secondary Licenses" (§3.2.a.ii). How or why would
> permission of previous contributors be required?

We are going to be instructing all Eclipse Foundation projects 
re-licensing from EPL-1.0 to EPL-2.0 that if they want to add a 
Secondary License they must request the approval of all subsequent 
contributors, and we'll be advising other projects to do so as well.

The initial Contributor for any particular piece of code is the 
person/entity that first put it under the EPL (presumably the original 
author, but maybe not).  So, it is intended that it is the decision of 
the initial Contributor whether or not a Secondary License is 
authorized.  If multiple discrete independently authored works get 
combined into a single project, there may be multiple initial 
Contributors. They would all need to agree to add the Secondary License 
if they wanted it to apply to the entire project because any single 
initial Contributor doesn't have the right to add the Secondary License 
to code that they received only under the EPL. (These permissions may be 
taken care of by having notices which state that subsequent 
contributions to the project are all under the same terms.)

There may be many Contributors that don't have any copyright ownership 
in the project code.  Maybe they only distributed the program, or only 
contributed minor bug fixes that weren't complicated enough to meet 
copyright requirements.  Their agreement to add a Secondary License 
would not technically be required.  However, since enabling the 
Secondary License is effectively an additional grant, clearly any 
copyright holder needs to have granted those rights to allow the code to 
be distributed under the Secondary License.  In other words, the initial 
Contributor cannot enable the Secondary License for code they don't own, 
or otherwise grant rights they do not have.

For community reasons, we view adding the Secondary License as a 
community decision, which should be approved by the community as a 
whole, including all of the code contributors.

-- 
Mike Milinkovich
mike.milinkovich at eclipse-foundation.org
(m) +1.613.220.3223

EclipseCon Europe 2017 <http://www.eclipsecon.org/europe2017>
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