Subject: RE: For Approval: Broad Institute Public License (BIPL)
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 11 Jul 2006 11:39:18 -0700
Tue, 11 Jul 2006 11:39:18 -0700
Thank you for resubmitting your license. I didn't focus on it when you first
submitted this.

 

If MIT refuses to grant a patent license for its software, then there is a
possibility that MIT (or its faculty, researchers, graduate students, staff,
etc.) will later claim royalties for the patents embodied in that software
from the users of that open source software. Is it your intention to allow
that? How is this at heart different from the Rambus licensing model?

 

How does this comport with OSD #7:


7. Distribution of License


The rights attached to the program must apply to all to whom the program is
redistributed without the need for execution of an additional license by
those parties.

Your license has removed important parts of the MPL that treat the Initial
Developer and subsequent Contributors the same. In your case, the Initial
Developer (MIT) does not grant a patent license but Contributors do. That
doesn't sound fair.

Many popular open source licenses are entirely silent about patents, so it
is hard to know what their licensors really intended about patent grants. In
your case, though, you have expressly made silent a patent grant that
existed previously in the MPL. So it is now fair to challenge you about your
removing a patent grant that "is an encumbrance that MIT cannot agree to
give" and passing that cost and risk onto your licensees. Is that
reasonable?

/Larry Rosen

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)

Stanford University, Lecturer in Law

3001 King Ranch Road, Ukiah, CA 95482

707-485-1242  *  fax: 707-485-1243

Author of "Open Source Licensing: Software Freedom and 

                Intellectual Property Law" (Prentice Hall 2004)

  _____  

From: Rory Pheiffer [mailto:rpp@MIT.EDU] 
Sent: Tuesday, July 11, 2006 10:09 AM
To: license-discuss@opensource.org
Cc: 'Russ Nelson'; 'Karin Rivard'
Subject: For Approval: Broad Institute Public License (BIPL)

 

Hello Discussion Board,

 

I e-mailed you just over two months ago with regard to my submission of the
Broad Institute Public License (BIPL) for approval.  Russ informed me today
that my original e-mail did not have the proper Subject header, and
therefore, he asked me to resubmit the license for discussion.  A discussion
on this license already occurred between May 8th and May 19th, and can be
found here: http://crynwr.com/cgi-bin/ezmlm-cgi?3:sss:11537.  In case you
failed to see this discussion initially because of the improperly labeled
header, please take a moment to review the license and provide your
comments.  I have also included the initial e-mail I sent to this list back
on May 8th.

 

We are anxious to have this license approved.  Thank you for your
consideration.

 

Regards,

Rory

 

 

 

 

Hello,

 

I am writing to begin a discussion about the license we (the Massachusetts
Institute of Technology or MIT for short) recently submitted to the Open
Source Initiative for approval as an OSI Certified license.  The title of
the license is the Broad (pronounced Brr-ode as opposed to Brr-awed)
Institute Public License, or BIPL for short.  Below please find the three
sections which your group has asked me to address:

 

 

SECTION ONE - Most Similar OSI Certified License to the BIPL.

 

The OSI Certified license that is most similar to the BIPL is the Mozilla
Public License (MPL).  However, because of the Broad Institute's affiliation
with MIT, and further because of MIT's unique situation as a very large
research and educational institution, we could not distribute software under
all of the MPL's terms.

 

The most significant reason why we could not use the MPL is because MIT
cannot agree to grant a license to any MIT-owned patent that may end up
being associated with the software.  This is because it is virtually
impossible for MIT to know if any of its many professors, researchers,
investigators, or students have, are, or will do work that gives rise to a
patent claim that covers use of its software under the BIPL.  MIT cannot
grant rights to these patent claims because the professors, researchers,
investigators, or students involved with the patent claim would not have an
opportunity to make decisions regarding the licensing of these patent claims
if a blind patent grant was part of a license that we distribute under.  The
patent grant in the MPL is an encumbrance that MIT cannot agree to give.

 

In the process of modifying the MPL to not include a grant to MIT-owned
patents, other less significant changes were also made.  These changes
resulted from cleaning up the current MPL to reflect MIT-preferred language
in some areas and to clear up areas of the MPL that can often be confusing.
As a whole though, the only major difference between the MPL and BIPL is the
loss of the patent grant language found in section 2.1 of the MPL.

 

 

SECTION TWO - Use in Conjunction with Software Distributed Under Other Open
Source Licenses.

 

Because we have incorporated many of the ideas of the MPL into the BIPL,
software distributed under the BIPL can easily be used in conjunction with
software distributed under other open source licenses.  Both sections 3.6
and sections 12 of the BIPL allow for such distribution.  It is likely that
derivative and combined works would be licensed under the BIPL, but because
of its versatility, there is no reason the rest of the work could not be
licensed under another open source license so long as the requirements of
the BIPL are met for the Covered Code.  We are not aware of any software
license that would be entirely incompatible with the BIPL, although if a
license is entirely incompatible with the MPL, it would also likely be
incompatible with the BIPL.

 

 

SECTION THREE - Plain Text Version of the BIPL.

 

I have attached two documents to this e-mail to aid the discussion.  The
first is a Text and HTML version of the BIPL (entitled Broad Institute
Public License Clean 2006-05-05).  If for some reason you have difficulty
reading this attachment, you can also find the license here:
http://web.mit.edu/afs/athena.mit.edu/user/r/p/rpp/www/.  The second is a
comparison of the BIPL to the MPL, performed using Deltaview but saved as
both a Microsoft Word and HTML file (entitled DV Comparison - MPL vs BIPL
2006-05-05).

 

 

I look forward to receiving your feedback on the BIPL.  Please don't
hesitate to contact me with any questions or concerns that you may have.

 

Best regards,

Rory Pheiffer

 

 

 

 

Rory P. Pheiffer, Esq.

Technology Licensing Associate

Massachusetts Institute of Technology

Technology Licensing Office

Five Cambridge Center, NE25-230

Kendall Square

Cambridge, MA  02142-1493

 

E-mail:   <mailto:rpp@mit.edu> rpp@mit.edu

Telephone:  (617) 253-6966

Fax:  (617) 258-6790

 

____________________________________________________________________________
___ 

NOTICE: This email may contain confidential or privileged information
intended for the addressee 

only.  If you are not the addressee, be aware that any disclosure, copying,
distribution, or use of the 

information is prohibited.  If you have received this email in error, please
call us at 617-253-6966.

____________________________________________________________________________
___ 

 



Thank you for resubmitting your license. I didn't focus on it when you first submitted this.

 

If MIT refuses to grant a patent license for its software, then there is a possibility that MIT (or its faculty, researchers, graduate students, staff, etc.) will later claim royalties for the patents embodied in that software from the users of that open source software. Is it your intention to allow that? How is this at heart different from the Rambus licensing model?

 

How does this comport with OSD #7:

7. Distribution of License

The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.

Your license has removed important parts of the MPL that treat the Initial Developer and subsequent Contributors the same. In your case, the Initial Developer (MIT) does not grant a patent license but Contributors do. That doesn't sound fair.

Many popular open source licenses are entirely silent about patents, so it is hard to know what their licensors really intended about patent grants. In your case, though, you have expressly made silent a patent grant that existed previously in the MPL. So it is now fair to challenge you about your removing a patent grant that "is an encumbrance that MIT cannot agree to give" and passing that cost and risk onto your licensees. Is that reasonable?

/Larry Rosen

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)

Stanford University, Lecturer in Law

3001 King Ranch Road, Ukiah, CA 95482

707-485-1242  *  fax: 707-485-1243

Author of "Open Source Licensing: Software Freedom and

                Intellectual Property Law" (Prentice Hall 2004)


From: Rory Pheiffer [mailto:rpp@MIT.EDU]
Sent: Tuesday, July 11, 2006 10:09 AM
To: license-discuss@opensource.org
Cc: 'Russ Nelson'; 'Karin Rivard'
Subject: For Approval: Broad Institute Public License (BIPL)

 

Hello Discussion Board,

 

I e-mailed you just over two months ago with regard to my submission of the Broad Institute Public License (BIPL) for approval.  Russ informed me today that my original e-mail did not have the proper Subject header, and therefore, he asked me to resubmit the license for discussion.  A discussion on this license already occurred between May 8th and May 19th, and can be found here: http://crynwr.com/cgi-bin/ezmlm-cgi?3:sss:11537.  In case you failed to see this discussion initially because of the improperly labeled header, please take a moment to review the license and provide your comments.  I have also included the initial e-mail I sent to this list back on May 8th.

 

We are anxious to have this license approved.  Thank you for your consideration.

 

Regards,

Rory

 

 

 

 

Hello,

 

I am writing to begin a discussion about the license we (the Massachusetts Institute of Technology or MIT for short) recently submitted to the Open Source Initiative for approval as an OSI Certified license.  The title of the license is the Broad (pronounced Brr-ode as opposed to Brr-awed) Institute Public License, or BIPL for short.  Below please find the three sections which your group has asked me to address:

 

 

SECTION ONE – Most Similar OSI Certified License to the BIPL.

 

The OSI Certified license that is most similar to the BIPL is the Mozilla Public License (MPL).  However, because of the Broad Institute’s affiliation with MIT, and further because of MIT’s unique situation as a very large research and educational institution, we could not distribute software under all of the MPL’s terms.

 

The most significant reason why we could not use the MPL is because MIT cannot agree to grant a license to any MIT-owned patent that may end up being associated with the software.  This is because it is virtually impossible for MIT to know if any of its many professors, researchers, investigators, or students have, are, or will do work that gives rise to a patent claim that covers use of its software under the BIPL.  MIT cannot grant rights to these patent claims because the professors, researchers, investigators, or students involved with the patent claim would not have an opportunity to make decisions regarding the licensing of these patent claims if a blind patent grant was part of a license that we distribute under.  The patent grant in the MPL is an encumbrance that MIT cannot agree to give.

 

In the process of modifying the MPL to not include a grant to MIT-owned patents, other less significant changes were also made.  These changes resulted from cleaning up the current MPL to reflect MIT-preferred language in some areas and to clear up areas of the MPL that can often be confusing.  As a whole though, the only major difference between the MPL and BIPL is the loss of the patent grant language found in section 2.1 of the MPL.

 

 

SECTION TWO – Use in Conjunction with Software Distributed Under Other Open Source Licenses.

 

Because we have incorporated many of the ideas of the MPL into the BIPL, software distributed under the BIPL can easily be used in conjunction with software distributed under other open source licenses.  Both sections 3.6 and sections 12 of the BIPL allow for such distribution.  It is likely that derivative and combined works would be licensed under the BIPL, but because of its versatility, there is no reason the rest of the work could not be licensed under another open source license so long as the requirements of the BIPL are met for the Covered Code.  We are not aware of any software license that would be entirely incompatible with the BIPL, although if a license is entirely incompatible with the MPL, it would also likely be incompatible with the BIPL.

 

 

SECTION THREE – Plain Text Version of the BIPL.

 

I have attached two documents to this e-mail to aid the discussion.  The first is a Text and HTML version of the BIPL (entitled Broad Institute Public License Clean 2006-05-05).  If for some reason you have difficulty reading this attachment, you can also find the license here: http://web.mit.edu/afs/athena.mit.edu/user/r/p/rpp/www/.  The second is a comparison of the BIPL to the MPL, performed using Deltaview but saved as both a Microsoft Word and HTML file (entitled DV Comparison – MPL vs BIPL 2006-05-05).

 

 

I look forward to receiving your feedback on the BIPL.  Please don’t hesitate to contact me with any questions or concerns that you may have.

 

Best regards,

Rory Pheiffer

 

 

 

 

Rory P. Pheiffer, Esq.

Technology Licensing Associate

Massachusetts Institute of Technology

Technology Licensing Office

Five Cambridge Center, NE25-230

Kendall Square

Cambridge, MA  02142-1493

 

E-mail:  rpp@mit.edu

Telephone:  (617) 253-6966

Fax:  (617) 258-6790

 

NOTICE: This email may contain confidential or privileged information intended for the addressee

only.  If you are not the addressee, be aware that any disclosure, copying, distribution, or use of the

information is prohibited.  If you have received this email in error, please call us at 617-253-6966.