Subject: Re: For Approval: Broad Institute Public License (BIPL)
From: Karin Rivard <rivard@MIT.EDU>
Date: Fri, 14 Jul 2006 11:09:08 -0400
Fri, 14 Jul 2006 11:09:08 -0400
John--
Thank you for your responses.  They have helped me to better 
understand this process and the comments made.  MIT will await the 
decision of the group.
Karin

At 10:52 AM 7/14/2006, John Cowan wrote:
>Karin Rivard scripsit:
>
> > I am writing on behalf of MIT.  It's not clear to me if this is how
> > the process works, but the group has raised a few issues on which I
> > would like to comment.
>
>Be aware that there's a difference between substantive objections
>and mere grousing, although it's hard to tell which is which unless
>you've been on the list for a while.
>
> > 1.  The requirements for OSI certification do not include a
> > requirement that the originator of the software offer a license to
> > originator owned patents.  As has been pointed out in the discussion
> > group, MIT's position  on not offering a patent license in the BIPL
> > is consistent with the GPL, the BSD license, the MIT license, the
> > Educational Community License, and others.
>
>At least some of these have been interpreted to offer implicit
>patent licenses (the MIT license uses the magic word "use" for
>exactly that reason -- copyright-only licenses have nothing to
>say about use), and the GPL explicitly says that you can't
>distribute software under it if a patent forbids, which is
>tantamount to saying (assuming you want to distribute at all)
>that no patent of the licensor's does forbid.
>
> > 2.  There is a lack of parity in treatment of the Originator of the
> > code and future contributors to the code.  This is true.  MIT will
> > not offer the patent license; however, the requirement on
> > contributors was an attempt to procure for users as many "freedom to
> > use" rights as possible.  If this disparity in treatment is so
> > abhorrent to OSI, it is easily remedied.  MIT will delete from the
> > BIPL all references to any patent grants from contributors.  Thus the
> > BIPL will simply be another open source license that is silent on
> > patent rights.
>
>This is a legitimately debatable point.  We tend to be hostile to
>asymmetrical licenses, though you are quite right that they have
>been approved in the past.
>
> > 3.  I do not understand the last comment from the list.  The software
> > is what is used.  The license is the mechanism by which the software
> > is used.  If no one contributes to the development of the software
> > because they do not like the license terms, that is ok.  The fact
> > remains that the software remains freely and openly available for use
> > by the public, which I thought was the goal.  Further, "use" or
> > "usability" is not one of factors that is stated as a requirement for
> > OSI approval.
>
>We are reluctant to go through the effort of approving licenses which
>no one but the drafter of the license will ever make use of.
>
>--
>John Cowan  cowan@ccil.org    http://ccil.org/~cowan
>No man is an island, entire of itself; every man is a piece of the
>continent, a part of the main.  If a clod be washed away by the sea,
>Europe is the less, as well as if a promontory were, as well as if a
>manor of thy friends or of thine own were: any man's death diminishes me,
>because I am involved in mankind, and therefore never send to know for
>whom the bell tolls; it tolls for thee.  --John Donne

__________________________________________________
Karin K. Rivard, Asst. Director and Counsel
MIT Technology Licensing Office, Room NE25-230
Five Cambridge Center, Kendall Square
Cambridge, MA 02142
Phone:  (617) 253-6966; Fax: (617) 258-6790
Email:  rivard@mit.edu


John--
Thank you for your responses.  They have helped me to better understand this process and the comments made.  MIT will await the decision of the group.
Karin

At 10:52 AM 7/14/2006, John Cowan wrote:
Karin Rivard scripsit:

> I am writing on behalf of MIT.  It's not clear to me if this is how
> the process works, but the group has raised a few issues on which I
> would like to comment.

Be aware that there's a difference between substantive objections
and mere grousing, although it's hard to tell which is which unless
you've been on the list for a while.

> 1.  The requirements for OSI certification do not include a
> requirement that the originator of the software offer a license to
> originator owned patents.  As has been pointed out in the discussion
> group, MIT's position  on not offering a patent license in the BIPL
> is consistent with the GPL, the BSD license, the MIT license, the
> Educational Community License, and others.

At least some of these have been interpreted to offer implicit
patent licenses (the MIT license uses the magic word "use" for
exactly that reason -- copyright-only licenses have nothing to
say about use), and the GPL explicitly says that you can't
distribute software under it if a patent forbids, which is
tantamount to saying (assuming you want to distribute at all)
that no patent of the licensor's does forbid.

> 2.  There is a lack of parity in treatment of the Originator of the
> code and future contributors to the code.  This is true.  MIT will
> not offer the patent license; however, the requirement on
> contributors was an attempt to procure for users as many "freedom to
> use" rights as possible.  If this disparity in treatment is so
> abhorrent to OSI, it is easily remedied.  MIT will delete from the
> BIPL all references to any patent grants from contributors.  Thus the
> BIPL will simply be another open source license that is silent on
> patent rights.

This is a legitimately debatable point.  We tend to be hostile to
asymmetrical licenses, though you are quite right that they have
been approved in the past.

> 3.  I do not understand the last comment from the list.  The software
> is what is used.  The license is the mechanism by which the software
> is used.  If no one contributes to the development of the software
> because they do not like the license terms, that is ok.  The fact
> remains that the software remains freely and openly available for use
> by the public, which I thought was the goal.  Further, "use" or
> "usability" is not one of factors that is stated as a requirement for
> OSI approval.

We are reluctant to go through the effort of approving licenses which
no one but the drafter of the license will ever make use of.

--
John Cowan  cowan@ccil.org    http://ccil.org/~cowan
No man is an island, entire of itself; every man is a piece of the
continent, a part of the main.  If a clod be washed away by the sea,
Europe is the less, as well as if a promontory were, as well as if a
manor of thy friends or of thine own were: any man's death diminishes me,
because I am involved in mankind, and therefore never send to know for
whom the bell tolls; it tolls for thee.  --John Donne

__________________________________________________
Karin K. Rivard, Asst. Director and Counsel
MIT Technology Licensing Office, Room NE25-230
Five Cambridge Center, Kendall Square
Cambridge, MA 02142
Phone:  (617) 253-6966; Fax: (617) 258-6790
Email:  rivard@mit.edu