MetaCarta developed the Clear BSD license to remove ambiguity relating to patents in the traditional BSD license.
MetaCarta has released a number of software projects into the open source world1, and we work to foster vibrant communities of developers around these projects. Our participation in open source has led to great results that might never have happened otherwise, both in community building and in actual software development. In the process, we have had in-depth discussions with many different people about pivotal interactions between open source, business, and legal issues. Of these issues, the thorniest relate to patents. Whether you love or hate patents, they exist and have an impact that open source projects cannot avoid.
While the BSD license and its several variants are used by many open source projects, they have an ambiguity that can block development of open source communities. The license grants copyright use rights simply by saying the word "use," which is widely known to be ambiguous. Specifically, it is not clear whether it also grants patent use rights. While most lawyers predict that it would be interpreted as not granting any rights to patents, this interpretation has not been tested in court. This lack of case law forces attorneys for corporations with patent interests to advise one of these paths:
Interestingly, no existing open source licenses permit any other routes. The closest candidates are the Academic Free License (AFL) and variants, which essentially assume that the project is not a general purpose tool. When a project has a narrow scope of utility, then an organization that holds patents unrelated to that narrow scope can comfortably use the AFL without explicitly carving out those other patents. However, for general purpose tools that can be used to implement a wide range of things, an organization would have to modify the AFL to narrow the scope.
In the past, open source communities have not felt a need for the Clear BSD because organizations with patent interests stayed far away by taking either routes 1 or 2. When organizations have taken route 3, the project has usually not attracted a vibrant community. To our knowledge, OpenLayers is one of the first projects to have started off via route 3 and attracted a community that wants to actively manage it. This led to the development of this revised BSD license.
Since it is widely understood that the BSD probably does not grant patent rights anyway, the obvious solution to this problem is to fix the ambiguity in BSD. The Clear BSD does this. The text of the Clear BSD has two pieces of text added. These additions are in bold below. The first piece of text connects the operative word "use" to the text in the disclaimer. The second piece of text is a disclaimer that clarifies that the license makes no grants about patent rights. This opens a fourth route for patent holders to foster and contribute to open source: contribute freely to openly managed open source projects that use the Clear BSD.
While this resolves the BSD's ambiguity, it is not the end of the story. Most open source projects require that contributors sign Contributor License Agreements (CLAs) that grant a license to any patents that are "necessarily" infringed by their contributions or by the project in general. The word "necessarily" is quite strong. It means that a contributor could simply argue that there were other uses of the work that did not "need" to infringe their patents, and therefore their CLA did not grant any rights. We fix this in the CLAs below.
This is a license template.
Copyright (c) <xxxx>-<xxxx> <Owner Organization> All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted (subject to the limitations in the disclaimer below) provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of <Owner Organization> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. NO EXPRESS OR IMPLIED LICENSES TO ANY PARTY'S PATENT RIGHTS ARE GRANTED BY THIS LICENSE. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
While the Clear BSD (above) resolves the BSD's ambiguity, it is not the end of the story. Most open source projects require that contributors sign CLAs that grant a license to any patents that are "necessarily" infringed by their contributions or by the project in general. The word "necessarily" is quite strong. It means that a contributor could simply argue that there were other uses of the work that did not "need" to infringe their patents, and therefore their CLA did not grant any rights. To fix this, we have improved a common template for CLAs by requiring that contributors list the actual patent numbers of patents that are licensable by them in one of two lists. If a contributor lists a patent in the "Full Rights Granted" list, then the project obtains explicit patent rights that it can pass on to others in distributions of the code. Passing on such rights can be easily done in a separate license file distributed with the source code alongside the BSD. Conveniently, the BSD does not say that it is the only license. If a contributor lists a patent in the "No Rights Granted" list, then the project does not lose any rights that it had.
<Project Name> Corporate Contributor License Agreement ("Agreement") v1.0
http://www.<Project Name>.org/ccla.txt
Thank you for your interest in the ≪Project Name> project, which is
presently maintained by ≪Owner Organization>, Inc. (the "Maintainer"). In order
to clarify the intellectual property license granted with
Contributions from any person or entity, the Maintainer must have a
Contributor License Agreement ("CLA") on file that has been signed by
each Contributor, indicating agreement to the license terms below.
This license is for Your protection as a Contributor as well as the
protection of the Maintainer and its users; it does not change Your
rights to use Your own Contributions for any other purpose.
This version of the Agreement allows an entity (the "Corporation") to
submit Contributions to the Maintainer, to authorize Contributions
submitted by its designated employees to the Maintainer, and to grant
copyright and patent licenses thereto.
If You have not already done so, please complete and send an original
signed Agreement to:
≪Project Name> care of ≪Owner Organization>
350 Massachusetts Avenue
Suite #450
Cambridge, MA 02139
U.S.A.
The signed Agreement may also be sent by facsimile to the Maintainer at:
Attn: ≪Project Name> 617-663-6382
Please read this document carefully before signing and keep a copy for
Your records.
Corporation name: ________________________________________________
Corporation address: ________________________________________________
________________________________________________
________________________________________________
Point of Contact: ________________________________________________
E-Mail: ________________________________________________
Telephone: _____________________ Fax: _____________________
You accept and agree to the following terms and conditions for Your
present and future Contributions submitted to the Maintainer. In
return, the Maintainer shall not use Your Contributions in a way that
is contrary to the public benefit. Except for the license granted
herein to the Maintainer and recipients of software distributed by the
Maintainer, You reserve all right, title, and interest in and to Your
Contributions.
1. Definitions.
"You" (or "Your") shall mean the copyright owner or legal entity
authorized by the copyright owner that is making this Agreement
with the Maintainer. For legal entities, the entity making a
Contribution and all other entities that control, are controlled
by, or are under common control with that entity are considered to
be a single Contributor. For the purposes of this definition,
"control" means (i) the power, direct or indirect, to cause the
direction or management of such entity, whether by contract or
otherwise, or (ii) ownership of fifty percent (50%) or more of the
outstanding shares, or (iii) beneficial ownership of such entity.
"Contribution" shall mean any original work of authorship,
including any modifications or additions to an existing work, that
is intentionally submitted by You to the Maintainer for inclusion
in, or documentation of, any of the products owned or managed by
the Maintainer (the "Work"). For the purposes of this definition,
"submitted" means any form of electronic, verbal, or written
communication sent to the Maintainer or its representatives,
including but not limited to communication on electronic mailing
lists, source code control systems, and issue tracking systems that
are managed by, or on behalf of, the Maintainer for the purpose of
discussing and improving the Work, but excluding communication that
is conspicuously marked or otherwise designated in writing by You
as "Not a Contribution."
2. Grant of Copyright License. Subject to the terms and conditions of
this Agreement, You hereby grant to the Maintainer and to
recipients of software distributed by the Maintainer a perpetual,
worldwide, non-exclusive, no-charge, royalty-free, irrevocable
copyright license to reproduce, prepare derivative works of,
publicly display, publicly perform, sublicense, and distribute Your
Contributions and such derivative works.
3. Grant of Patent License. Subject to the terms and conditions of
this Agreement, You hereby grant to the Maintainer and to
recipients of software distributed by the Maintainer 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 You that are necessarily infringed by Your
Contribution(s) alone or by combination of Your Contribution(s)
with the Work to which such Contribution(s) was submitted. If any
entity institutes patent litigation against You or any other entity
(including a cross-claim or counterclaim in a lawsuit) alleging
that Your Contribution, or the Work to which You have contributed,
constitutes direct or contributory patent infringement, then any
patent licenses granted to that entity under this Agreement for
that Contribution or Work shall terminate as of the date such
litigation is filed. To avoid confusion about what uses constitute
necessary infringement, You must list the patent numbers of all
pertinent issued patents that are licensable by You in the two
lists below. A patent is pertinent if its teachings relate to
possible uses of Your Contribution or the Work in any way and has
been issued by a patent office on or before the date of Your
Contribution. By listing a patent number in the "Full License
Grant" list, You grant the license described in this section on
that patent. By listing a patent in the "No License Granted" list,
You reserve all rights and grant no rights on that patent. You
must list all issued patents that are licensable by You on the date
of this Agreement. If You fail to list here a currently issued
patent that is licensable by You as of the date of this Agreement
and that would be infringed through the making, using, importing
and/or selling of software products derived in whole or in part
from Your Contribution as contemplated by the Work, You agree that
it shall be considered as listed in the "Full License Granted"
list. Patents issued after the date of Your Contribution are not
deemed to be licensed hereunder. When You make future
contributions to the project, You must complete and sign a new
Agreement. In considering whether to include Your Contribution,
the Maintainer shall evaluate the patents that You list. If You
wish to re-designate patents from the "No License Grant" list
(including when the patent is not listed on any list) to the "Full
License Grant" list, You must complete and sign a new Agreement
listing such Patents under the "Full License Grant" list.
Full License Granted No License Granted
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
4. You represent that You are legally entitled to grant the above
licenses. You represent further that each employee of the
Corporation designated on Schedule A below (or in a subsequent
written modification to that Schedule) is authorized to submit
Contributions on behalf of the Corporation.
5. You represent that each of Your Contributions is Your original
creation (see section 7 for submissions on behalf of others). You
represent that Your Contribution submissions include complete
details of any third-party license or other restriction (including,
but not limited to, related patents and trademarks) of which You
are personally aware and which are associated with any part of Your
Contributions.
6. You are not expected to provide support for Your Contributions,
except to the extent You desire to provide support. You may
provide support for free, for a fee, or not at all. Unless
required by applicable law or agreed to in writing, You provide
Your Contributions on an "AS IS" BASIS, WITHOUT IMPLIED WARRANTIES
OR CONDITIONS OF ANY KIND including, without limitation, any
warranties or conditions of TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE.
7. Should You wish to submit work that is not Your original creation,
You may submit it to the Maintainer separately from any
Contribution, identifying the complete details of its source and of
any license or other restriction (including, but not limited to,
related patents, trademarks, and license agreements) of which You
are personally aware, and conspicuously marking the work as
"Submitted on behalf of a third-party: [named here]".
8. It is Your responsibility to notify the Maintainer when any change
is required to the list of designated employees authorized to
submit Contributions on behalf of the Corporation, or to the
Corporation's Point of Contact with the Maintainer.
Please sign: __________________________________ Date: _______________
Title: __________________________________
Corporation: __________________________________
Schedule A
[Initial list of designated employees. NB: authorization is not
tied to particular Contributions.]
Schedule B
[Identification of optional concurrent software grant. Would be
left blank or omitted if there is no concurrent software grant.]
≪Project Name> Individual Contributor License Agreement ("Agreement") v1.0
http://www.<Project Name>.org/icla.txt
Thank You for Your interest in the ≪Project Name> project, which is
presently maintained by ≪Owner Organization>, Inc. (the "Maintainer"). In order
to clarify the intellectual property license granted with
Contributions from any person or entity, the Maintainer must have a
Contributor License Agreement ("CLA") on file that has been signed by
each Contributor, indicating agreement to the license terms below.
This license is for Your protection as a Contributor as well as the
protection of the Maintainer and its users; it does not change Your
rights to use Your own Contributions for any other purpose.
If You have not already done so, please complete and send an original
signed Agreement to:
≪Project Name> care of ≪Owner Organization>
350 Massachusetts Avenue
Suite #450
Cambridge, MA 02139
U.S.A.
The signed Agreement may also be sent by facsimile to the Maintainer at:
Attn: ≪Project Name> 617-663-6382
Please read this document carefully before signing and keep a copy for
Your records.
Full name: ____________________________ E-Mail: ___________________
Mailing Address: ______________________ Telephone: ___________________
_______________________________________
_______________________________________ Country: ___________________
You accept and agree to the following terms and conditions for Your
present and future Contributions submitted to the Maintainer. In
return, the Maintainer shall not use Your Contributions in a way that
is contrary to the public benefit. Except for the license granted
herein to the Maintainer and recipients of software distributed by the
Maintainer, You reserve all right, title, and interest in and to Your
Contributions.
1. Definitions.
"You" (or "Your") shall mean the copyright owner or legal entity
authorized by the copyright owner that is making this Agreement
with the Maintainer. For legal entities, the entity making a
Contribution and all other entities that control, are controlled
by, or are under common control with that entity are considered to
be a single Contributor. For the purposes of this definition,
"control" means (i) the power, direct or indirect, to cause the
direction or management of such entity, whether by contract or
otherwise, or (ii) ownership of fifty percent (50%) or more of the
outstanding shares, or (iii) beneficial ownership of such entity.
"Contribution" shall mean any original work of authorship,
including any modifications or additions to an existing work, that
is intentionally submitted by You to the Maintainer for inclusion
in, or documentation of, any of the products owned or managed by
the Maintainer (the "Work"). For the purposes of this definition,
"submitted" means any form of electronic, verbal, or written
communication sent to the Maintainer or its representatives,
including but not limited to communication on electronic mailing
lists, source code control systems, and issue tracking systems that
are managed by, or on behalf of, the Maintainer for the purpose of
discussing and improving the Work, but excluding communication that
is conspicuously marked or otherwise designated in writing by You
as "Not a Contribution."
2. Grant of Copyright License. Subject to the terms and conditions of
this Agreement, You hereby grant to the Maintainer and to
recipients of software distributed by the Maintainer a perpetual,
worldwide, non-exclusive, no-charge, royalty-free, irrevocable
copyright license to reproduce, prepare derivative works of,
publicly display, publicly perform, sublicense, and distribute Your
Contributions and such derivative works.
3. Grant of Patent License. Subject to the terms and conditions of
this Agreement, You hereby grant to the Maintainer and to
recipients of software distributed by the Maintainer 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 You that are necessarily infringed by Your
Contribution(s) alone or by combination of Your Contribution(s)
with the Work to which such Contribution(s) was submitted. If any
entity institutes patent litigation against You or any other entity
(including a cross-claim or counterclaim in a lawsuit) alleging
that Your Contribution, or the Work to which You have contributed,
constitutes direct or contributory patent infringement, then any
patent licenses granted to that entity under this Agreement for
that Contribution or Work shall terminate as of the date such
litigation is filed. To avoid confusion about what uses constitute
necessary infringement, You must list the patent numbers of all
pertinent issued patents that are licensable by You in the two
lists below. A patent is pertinent if its teachings relate to
possible uses of Your Contribution or the Work in any way and has
been issued by a patent office on or before the date of Your
Contribution. By listing a patent number in the "Full License
Grant" list, You grant the license described in this section on
that patent. By listing a patent in the "No License Granted" list,
You reserve all rights and grant no rights on that patent. You
must list all issued patents that are licensable by You on the date
of this Agreement. If You fail to list here a currently issued
patent that is licensable by You as of the date of this Agreement
and that would be infringed through the making, using, importing
and/or selling of software products derived in whole or in part
from Your Contribution as contemplated by the Work, You agree that
it shall be considered as listed in the "Full License Granted"
list. Patents issued after the date of Your Contribution are not
deemed to be licensed hereunder. When You make future
contributions to the project, You must complete and sign a new
Agreement. In considering whether to include Your Contribution,
the Maintainer shall evaluate the patents that You list. If You
wish to re-designate patents from the "No License Grant" list
(including when the patent is not listed on any list) to the "Full
License Grant" list, You must complete and sign a new Agreement
listing such Patents under the "Full License Grant" list.
Full License Granted No License Granted
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
4. You represent that You are legally entitled to grant the above
license. If Your employer(s) has rights to intellectual property
that You create that includes Your Contributions, You represent
that You have received permission to make Contributions on behalf
of that employer, that Your employer has waived such rights for
Your Contributions to the Maintainer, or that Your employer has
executed a separate Corporate CLA with Maintainer.
5. You represent that each of Your Contributions is Your original
creation (see section 7 for submissions on behalf of others). You
represent that Your Contribution submissions include complete
details of any third-party license or other restriction (including,
but not limited to, related patents and trademarks) of which You
are personally aware and which are associated with any part of Your
Contributions.
6. You are not expected to provide support for Your Contributions,
except to the extent You desire to provide support. You may
provide support for free, for a fee, or not at all. Unless
required by applicable law or agreed to in writing, You provide
Your Contributions on an "AS IS" BASIS, WITHOUT IMPLIED WARRANTIES
OR CONDITIONS OF ANY KIND including, without limitation, any
warranties or conditions of TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE.
7. Should You wish to submit work that is not Your original creation,
You may submit it to the Maintainer separately from any
Contribution, identifying the complete details of its source and of
any license or other restriction (including, but not limited to,
related patents, trademarks, and license agreements) of which You
are personally aware, and conspicuously marking the work as
"Submitted on behalf of a third-party: [named here]".
8. You agree to notify the Maintainer of any facts or circumstances of
which You become aware that would make these representations
inaccurate in any respect.
Please sign: __________________________________ Date: ________________