[License-review] Request for approval of new "MGB 1.0" license

[Barksdale, Marvin]

I Marvin Barksdale JD, the license steward and license submitter, attests that this new “MGB 1.0” license complies with the Open Source Definition, including:
OSD 3 – The license must allow modifications and derived works and must allow them to be distributed under the same terms as the license of the original software.
OSD 5 – The license must not discriminate against any person or group of persons.
OSD 6 – The license must not restrict anyone from making use of the program in a specific field of endeavor.
and OSD 9 – The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open source software.
License Rationale
The MGB Open Source License 1.0 (“MGB 1.0”) is a permissive open source license that was created to catalyze open source distribution and open science among the health care innovator and research development community, particularly those employed at Academic Medical Centers (AMCs) receiving federal grant funding, such as Mass General Brigham Incorporated (MGB).  AMCs are collectively organized hospitals and laboratories that are integrated with a medical school, featuring a federally regulated mission to provide patient care, train healthcare professionals, and conduct innovative research.  In recent years these complex organizations have evolved to perform several ancillary commercial functions including IP co-development, administration, and out-licensing, all of which aimed to support their central mission of the advancement of medicine.  Aligned with this central mission is the proliferation of open science activity at AMCs, in that many of their researchers and developers have shifted to open collaborative approaches where research data, methodologies, source code and findings are shared at no cost to spur innovation. But, despite the alignment with system goals, AMCs have been slow to adopt open source best practices.    At Mass General Brigham, for example, despite receiving over $77M in NIH funding over the past 10 years to support 200+ software research projects in yielding fruitful open source communities and innovations, instead there is a large silo of health care researchers, clinicians, and developers who operate in the grey areas of open source, NIH, Open Access Journal, and MGB compliance.
The goal of MGB 1.0 is to provide developers who are building innovative technology within highly regulated health care environments with a permissive open source license that incorporates the best practices of digital health licensing, enabling compliant open source collaboration both across and external to AMCs.
Beyond addressing the open data, open source, and open access approaches of digital health researchers and software developers, MGB 1.0 also looks to support the rise of open AI model development that often utilizes sensitive health data for training purposes. Thus, although MGB 1.0 uses a similar licensing approach as Apache 2.0, it expands its applicability to AI models and other shared works and derivatives spanning “model architecture, code, data descriptions, data, and the model weights.” This expanded scope is important because there are few open source licenses in current use that are suitable for releasing AI models and their related artifacts.
Through internal cross-functional approval MGB 1.0 is now the default open source license for emerging MGB research and innovations involving open science, and for over 500 active GitHub repositories authored and / or controlled by MGB clinicians, researchers, labs, and developers. The MGB Open Science Program Office manages the MGB IP Policy pertaining to open source licensing and drives compliance through the promotion of open science best practices.
Legal Analysis
Although MGB 1.0 uses a pro-commercialization, pro-modification, highly compatible licensing scheme similar to Apache 2.0, it is critically different in three ways: clarified patent terms, coverage of AI artifacts, and clarified interaction with data regulation. Licensors of open source software have long struggled with the ambiguities of the patent license grant in Apache 2.0. In this license each Contributor grants a no-charge patent license to the Work, applying to “patent claims that are necessarily infringed by their Contribution(s) or by the combination of their Contribution to the Work.”  As evidenced by the AFL, and later, the GNU v3 licenses, all approved by OSI, there has been a shift in OSI license patent grants to language that “applies only to specific set of patent claims…that are embodied in the in the Original Work as furnished by the Licensor. [They are] not license[s] to the Licensor’s entire patent portfolio.“ [Lawrence Rosen “Open Source Licensing – Software Freedom and Intellectual Property Law” p 189].
As Apache 2.0’s patent grant features a broad patent grant application extending to those claims infringed by the combination of the original Work and a Contribution,  MGB 1.0 builds on Rosen’s focused approach: “claims embodied by the original work,” to explicitly apply to patent claims claiming inventions embodied in contribution. The license also leverages clarifying patent language from Section 2.3 of the Mozilla Public License version 2.0 also approved by OSI.
MGB 1.0 was co drafted by myself, Marvin Barksdale JD, Preston Regehr Esq. of Tech Law Ventures PLLC, and Heather Meeker Esq. of Tech Law Partners LLP before being reviewed and approved for system use by Mass General Brigham’s Office of General Counsel’s IP Group.
Summary
MGB 1.0 provides express licensing provisions that are best practice in digital health, while explicitly preserving opportunities for commercial activity by licensors who are patent portfolio holders and innovators.   To these ends, MGB 1.0 utilizes a clearer approach than the MIT, BSD and Apache 2.0 licenses. Furthermore, MGB 1.0, explicitly contemplates the inclusion of AI model artifacts in the licensed work. Beyond the clarified patent grant, MGB 1.0 also adds HIPAA acknowledgement language that will provide AMC’s and other open source innovators sharing models trained on health data comfort that they can release materials under this license and still comply with law in a heavily regulated field. MGB 1.0 provides developers who are building innovative software within highly regulated health care environments with a permissive open source license that incorporates the best practices of digital health licensing, catalyzing compliant open source collaboration.






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	MGB OPEN SOURCE LICENSE 1.0

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