7.4 Drafting Open Source Licenses
As should be evident from the
previous discussion, drafting a new
open source license is probably not the best place to start for most
open source projects. In addition to the extra time and expense
associated with drafting any legal document, the use of a new license
will discourage potential contributors from participating in the
project. Those contributors who are concerned about licensing
implications will want to read and understand the license.
Particularly in the case of long or complex licenses, this may
present a substantial barrier to entry.
If you choose to do it, however, the first step in drafting an open
source license should be retaining a competent and experienced
attorney to undertake the task. While
many open source licenses have been drafted by non-lawyers, the
drafting of any contract, particularly one with the complexities
inherent in open source software licenses, should be undertaken by
someone with professional knowledge and experience.
After securing counsel, the next step should probably be devising the
basic mechanics of the license. The new author should give serious
thought to what the function of the license is intended to be. With
open source and free software licenses, the
key
issue will generally be the generational limitations placed on
distribution and modification of the licensed work by licensees. Many
of the possible limitations have already been described. The MIT and
the BSD Licenses, for example, require only that the text of the
license be included in the subsequent distribution and that the
required attributions be made. The GPL imposes much more substantial
limitations: any distribution or modification of the work by
licensees must be consistent with the terms of the GPL. If a licensee
wishes to modify and distribute the work, he or she must license
future users of that modified work under the GPL. The MPL imposes
somewhat similar restrictions for modifications to the licensed work,
but it permits either the original or the modified work to be
distributed as part of a "Larger
Work" under another license, including a proprietary
license.
The number of potential variations is nearly infinite. The
Open Source
Definition, described in Chapter 1, imposes
some specific requirements for a license that the author wants to
have certified as compliant by the Open Source Initiative.
A brief summary of those requirements follows here. An open source
license must permit an open development model to be applied to the
licensed work, in that the source code must be provided or otherwise
made available with the executable version of the code. The license
must permit free modification of the licensed work and free
distribution of both the original and the modified work. The license
cannot discriminate in its application against any person or group of
persons or any field of endeavor.
Of course, a license need not be compliant with the
Open Source Definition to be an effective
license. But if the intent is to draft an "open
source license," failure to comply with the Open
Source Definition is a pretty good sign that the drafter is not
headed in the right direction. Beyond the fundamentals of the Open
Source Definition, there is considerable scope for creativity and
ingenuity in drafting licenses.
Many of the licenses described in this book, such as the
Apache License, v2.0, and the
MPL, begin with long, comprehensive
lists of definitions. While not necessary, using such definitions can
avoid unnecessary repetition of the same language throughout the
license. A definitions section can also avoid accidental, and
apparently inconsequential, variations in phrases or sentences that
are supposed to be identical. Such variations can lead to potentially
serious problems in interpreting the license, as users and
contributors, and possibly lawyers, judges, and juries, attempt to
determine whether the use of slightly different language was
accidental or intentional.
Disclaimer of warranties and limitation of liabilities clauses are
virtually universal in open source licenses. While certainly not
required by the Open Source Definition, they are prudently included
in such licenses to protect the licensor and any potential
contributors from liability. Such clauses are not unique to open
source licenses梞any commercial software licenses contain
similar terms.
The use of choice of forum and choice of law
clauses is relatively uncommon in open source licenses, but there are
many situations in which such clauses could be advantageous to the
licensor, particularly for
"developer-centric" licenses, such
as the Apache License, v2.0, and the Perl License. With such licenses, it is
anticipated that the project will remain primarily under the control
of its initial developer. That developer may want to choose a local
forum and the application of local law for the convenience of the
developer in the event any dispute arises under the terms of the
license. For example, a developer located in Boston may want to
identify the Massachusetts state courts located in Boston as the
forum for any dispute under the license and for Massachusetts law to
control the interpretation and enforcement of the license. When
considering the use of such clauses, developers should consult with a
lawyer to make sure that the law that they are choosing to govern the
license will interpret and enforce the license consistent with the
developer's understanding. Laws vary significantly
among different locales: it is certainly possible that a New York
court would reach a different conclusion than a Massachusetts court
as to how a contract should be interpreted.
One final area that a developer should give some thought to
addressing is the applicability of
patents to the licensed work.
In order to prevent patent litigation to the extent possible, it is
probably worthwhile to include a clause in the license that grants
specific permission for users to exercise a royalty-free right to any
patents held by the licensor, and, depending on the terms of the
license, any subsequent contributors.
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For a list of licenses that the Open Source Initiative has approved as
conforming to their expectations of open source, and for information
about their process for approving licenses, visit http://opensource.org/licenses/.
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