[License-review] Approval: BSD + Patent License

[Jim Jagielski]

The Apache License v2 was designed and meant to "cooperate"
with Apache's iCLA, but was not designed primarily to be "used with"
it as a main goal. ALv2 was and is designed to be stand alone,
used by anyone regardless of whether any sort of CLA is in place
or not. Sure there is some overlap in wording and phrasing, but
that is hardly unexpected. But to imply or suggest that the ALv2
cannot be used, or understood, without deference to our iCLA is
simply incorrect.

For the record, the ALv2 was also designed to be compatible w/ the
GPLv2 and during the drafting process, comments and suggestions
from various parties associated with the GPL were incorporated.
We fully expected that the FSF (and others), based on this and
from their feedback, would formally state that ALv2 was compatible;
you can imagine our surprise (and disappointment) when, not long
after we released it, we were told "nope".

Finally, the ASF does not require any sort of iCLA for contributions
in general. Large code donations require a software grant and people
who achieve commit priv status and required to sign an iCLA, but the
latter is mostly a belt-and-braces scenario.

> On Jan 14, 2016, at 4:41 PM, Richard Fontana <fontana at sharpeleven.org> wrote:
> 
> 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.
> 
> Hi McCoy,
> 
> 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[1], 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[2]).
> 
> 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. 
> 
> Richard
> 
> [1]Mark is also general counsel to the OSI.
> 
> [2]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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