Sakai Moving To ECL 2.0

The Sakai Foundation is working on releasing future versions of Sakai under the 2.0 version of the Educations Commons License (ECL 2.0). This may begin with Sakai 2.5 if they can coordinate the change in time for this release. Otherwise it will wait until the following release.

The 2.0 version of the ECL is a big improvement over the 1.0 version. The old ECL was a unique license with some unusual requirements and, while it was determined to be "open" by the OSI, it was difficult to interpret compatibility with other licenses since it was not used by many projects. The new ECL is a derivative of the Apache 2.0 license -- a mainstream open source license used by a large number of community source projects.

The only difference between the Apache 2.0 and ECL 2.0 licenses pertains to the patent grant. According to the license preamble itself, the ECL 2.0 "consists of the Apache 2.0 license, modified to change the scope of the patent grant in section 3 to be specific to the needs of the education communities using this license."

In the Apache 2.0 license, section 3 is entitled "Grant of Patent License" and contains the following text:

Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

In the ECL 2.0 license, the following text is added to the end of section 3:

Any patent license granted hereby with respect to contributions by an individual employed by an institution or organization is limited to patent claims where the individual that is the author of the Work is also the inventor of the patent claims licensed, and where the organization or institution has the right to grant such license under applicable grant and research funding agreements. No other express or implied licenses are granted.

So while I am glad that Sakai is moving to a more recognizable license, I don't really understand why it needs to still have its own license instead of simply adopting the Apache 2.0 license. Was there real value in attempting to further restrict the patent grant in this way? Was this really necessary to meet "the needs of the education communities"?

If I am reading the changes correctly, the phrase "where the individual that is the author of the work is also the inventor of the patent claims licensed" sounds like the only time a patent grant can occur is when the person who invented the patent is also the same person contributing code to the project. If the patent is held by an institution because it was developed by an employee of that institution, shouldn't the patent grant occur when any properly authorized employee of that institution contributes code that uses that patented concept? This change seems to overly restrict the patent grant in an unnecessary and confusing way.

Furthermore, doesn't the existing phrase "where such license applies only to those patent claims licensable by such contributor" essentially say that a contribution only causes an implicit patent grant when the contributor is legally and contractually in a position to grant license to the patent? It seems to me that if the contributor does not have the right to license the patent due to "grant and research funding agreements", then the patent is inherently not licensable by that contributor and the general language already in the Apache license would still cover this scenario.

The patent termination and indemnification provisions in the Apache license are the things that the Free Software Foundation and the Apache Software Foundation disagree about regarding compatibility between the Apache 2.0 license and the GPLv2 license. Given that ~70% of open source software is distributed under GPLv2, compatibility is valuable. As murky as the compatibility between Apache and GPL is already, further modifying one of the disputed sections makes it even murkier in the case of Sakai. I know the changes in the ECL are to the original grant of the patent license and not the termination, but the changes still fall in the same general area and provide further possible confusion.

It saddens me to see Sakai continue to be distributed under a unique license. We've finally straightened out the licensing of uPortal as being a normal BSD License project. Moodle is distributed as a GPLv2 project and so its usage and compatibilities are well understood. License proliferation is a major problem in the open source community and this feels like we as the Sakai community are continuing to make things worse when we could have easily made them better.

Disclaimer: I am not a lawyer and this should not be considered as any form of legal advice. This is just a layperson interpretation of the licensing.