Michael Feldstein from e-Literate got in touch with me late last week to inquire about Sakai's move to the Educational Community License 2.0. He expressed some concern about the new license which he discovered reading John Lewis' blog complaining about the move. I'm glad Michael contacted me because it gives me an opportunity to talk about the great things Sakai and Kuali do to protect contributors and adopters.

First, let me say that I have no formal legal training but I've learned a lot spearheading a set of intellectual property management practices for the OSP, Sakai, and Kuali communities over the last 5 years (wow, I can't believe it's been that long). Our community practices consist of 3 parts:

1. Outbound licensing. This is the license that conveys the right to use, modify, and share software the community produces.
2. Inbound licensing. These are the documents that individuas and organizations sign to convey similar rights to their original works (source code, documentation, etc.) that will be part of what the community distributes.
3. Use of 3rd party code. This is a set of processes and analysis of 3rd party libraries to ensure that the community's use of these libraries (like Apache Axis for example) is: 1) consistent with the terms of the library's license; and 2) compatible with our own outbound license.

The community's practices are fairly well documented, and we conduct teleconferences, presentations, and other community education sessions to build awareness and compliance. Our efforts as a community give me--as a producer, and a consumer of what the community produces--a lot of confidence that, from a legal perspective, I'm taking appropriate measures to mitigate risk. In fact I'll bet that our deliberate, and comprehensive scrutiny result in a degree of IP compliance that is seldom rivaled. To back that up somewhat, the Kuali Financial System project engaged Mark Radcliffe at DLA Piper to perform a 3rd party audit that included a deep code scan using Palamida software. Mark is one of the most knowledgeable attorneys in the world when it comes to open source software. Their report showed us a few places where we could have done a better job, but it mostly confirmed that our practices were solid. The Kuali Financial System received a very favorable audit, and subsequently improved a few things according to DLA's recommendations.

With all that said, our IP management practices (including the licenses we use) are still evolving. In the spirit of open source we've conducted all of our work in public forums with as much transparency as possible. A year ago we held an international licensing summit to begin building a licensing and policy framework for open source in education. An outcome of the summit was to move forward with an incremental plan to change from the BSD-style ECL, to an Apache-style ECL that would eventually move our community to adopt a popular license like the Apache license. Why couldn't we just adopt the Apache License and be done with it? (This is the net of John's complaint) The simple answer is that the Apache license makes a broad patent license that major contributors in our communities were unable to make. It's important that the inbound and outbound licenses be symmetrical. We agreed that we did not want to make claims on the outbound license to the public adopting Sakai or Kuali, that we couldn't back up with symmetrical claims on the inbound side for the original IP that our community was producing. It turns out that the patent license granted in the Apache license conflicts with the institutional policies of many of our contributors, and changing those policies is going to take some time.

So the plan we devised during the Summit was to make incremental progress. ECL 2.0 is a part of that plan which will hopefully result in our communities adopting a popular license like Apache 2.0 at some point in the future. In the meantime there's a lot of value in moving together as a community and keeping the important symmetry in the inbound and outbound licenses. It doesn't do anyone any good to make larger claims to the public, than we can back up with agreements from our contributors.

Michael, I hope this response is helpful. It may not fully alleviate your concerns but at least you'll know that they are shared concerns, and that they are being methodically addressed. I should note that the contributors from institutions whos policies conflict have been active in establishing these practices and even lobbying for institutional policy change.

I encourage anyone interested in these matters to get involved. I have to admit, I was a little surprised to see that John was "saddened" by Sakai's move to ECL 2.0. John, get involved and help to move the ball forward. You're a really smart guy with something to contribute in this arena. There's no reason to be sad. :-) we're doing some really good things. These matters are complex and as much as I'd like policies to change overnight, they are going to take time and hard work.

For more information:

1. Email the Sakai or Kuali licensing mailing lists
2. Review the Sakai or Kuali licensing practices
3. Review the license and contribution agreements themselves
4. Read the report from our licensing summit