[License-discuss] Contributor Clauses in Licenses

[Pamela Chestek]

I am in favor of an express statement in the license and agree that the 
statement should be inbound=outbound. There was a lot of doubt about the 
licensing of contributions in earlier open source history, which I 
believe is the driving force behind the creation of the CAA/CLA (and why 
some companies still won't accept contributions without them, although 
nowadays its the inequality of the grant that more likely drives it).  
AFAIK Larry Rosen first articulated the concept of an implied 
inbound=outbound license in his book and then Richard Fontana came up 
with a catchy name and it's been accepted as The Way Things Are since 
then. But implied licenses are narrowly construed and there is also some 
really weird, underinclusive case law around implied licenses in some 
circuits in the U.S. (notably the 9th, which includes California)[^1] 
which makes me even less certain that a court's decision would match 
what we all believe to be true. So I think an inbound=outbound statement 
makes sense.

As to Josh's comment "No text contained within the license can enforce 
that my PR is under that license," I disagree. When I created my 
contribution I necessarily accepted the terms of the outbound license, 
or at least I am hard-pressed to think of a way that someone made a 
contribution that matters but would not have taken an action that 
requires acceptance of the license. Since I accepted the project 
license, I therefore agreed to the terms for my contribution and the CLA 
within the license is enforceable against me as a contributor. That's 
essentially the same mechanism as implied inbound=outbound -- I was 
aware of the license terms and understood that my contribution would be 
licensed under those terms. This just makes it an express condition, not 
implied. If an express grant isn't enforceable against a contributor, 
then the implied grant is even less likely to be enforceable against them.

Pam

[^1]: https://www.ce9.uscourts.gov/jury-instructions/node/283

Pamela S. Chestek
Chestek Legal
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Unit 4316
El Dorado Hills, CA 95762
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www.chesteklegal.com

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On 12/8/2025 2:12 PM, McCoy Smith wrote:
> If the contribution is a (C) derivative, I'm not sure I'm seeing why 
> this is an issue. All OS licenses (other than the -0 ones) impose 
> conditions on derivatives.
>
> If the contribution is not a derivative, they're merely articulating 
> the conditions under which a contribution would be accepted by the 
> project maintainers, *not* a condition on how the non-derivative work 
> can otherwise be used. Again, I don't see how that is an issue.
>
> The bigger problem with these combined outbound license+inbound cla 
> documents is they often attempt to impose non-reciprocal conditions -- 
> i.e., outbound license has conditions -- attribution, source, etc., 
> but inbound CLA imposes no conditions on the project maintainers w/r/t 
> the submitted contributions. That makes the license discriminatory.
>
> One could solve this problem by simply saying license in=license out 
> but you don't need a separate clause in a license to do that.
>
> On 12/8/2025 1:57 PM, Josh Berkus wrote:
>> On 12/8/25 1:46 PM, David Woolley wrote:
>>>> 1. Unless enforced by some other mechanism (CLA, repository TOS, 
>>>> etc.), it is not automatically true that contributions are under 
>>>> the license in the first place;
>>>
>>> CLAs aren't licences to the contributor, but rather a licence from 
>>> the contributor to the initial developer, often allowing the initial 
>>> developer to use the contributions outside of open source 
>>> licensing.  As such I don't see how they can be used to constrain 
>>> someone creating modifications to the code.
>>
>> Other way around.  The outgoing license is trying to put conditions 
>> on how you contribute to the upstream project.
>>
>>
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