2.4 The Academic Free License

2.4 The Academic Free License

The Academic Free License is substantially similar to the Apache License, v1.1, in forbidding claims of endorsement by the work's creator, in requiring attribution to the creator, in disclaiming warranties, and in permitting distribution of the original work and derivative works subject only to certain limitations. The Academic Free License adds four more provisions that are not in the Apache or BSD Licenses, two of them pertaining to patent law, and two of them governing choice of law and shifting of attorneys fees.

As discussed in Chapter 1, the intellectual property rights at play in software licenses derive for the most part from copyright, protecting the expression of particular ideas. The Academic Free License also addresses the case in which a patent holder chooses to permit the open source use of that patent.

Paragraph 1 of the Academic Free License (v2.0) provides: ^[3]

^[3] The text of the Acadmic License can be found at http://www.opensource.org/licenses/afl-2.0.php. It is copyright 2003 by Lawrence E. Rosen.

1) Grant of Copyright License . Licensor hereby grants You a world-wide, royalty-free , non-exclusive, perpetual , sublicenseable license to do the following: a) to reproduce the Original Work in copies; b) to prepare derivative works ("Derivative Works") based upon the Original Work; c) to distribute copies of the Original Work and Derivative Works to the public; d) to perform the Original Work publicly; and e) to display the Original Work publicly .

This is essentially the same bundle of rights granted by the Apache and BSD Licenses already discussed. Paragraph 2 distinguishes the Academic License by making it clear that patent claims owned or controlled by the Licensor are licensed to those working with this software.

2) Grant of Patent License . Licensor hereby grants You a world-wide, royalty-free, non-exclusive, perpetual, sublicenseable license, under patent claims owned or controlled by the Licensor that are embodied in the Original Work as furnished by the Licensor, to make, use, sell and offer for sale the Original Work and Derivative Works.

This paragraph grants the licensee a license to exercise patent rights without payment of royalties, so long as a) those patent rights are held by the licensor, and b) those patent rights are exercised in connection with the Original Work or a Derivative Work. Accordingly , this may be an appropriate license (or license provision) to be used for a work that its creator intends to be open source licensed that includes property subject to one or more patents.

While this license explicitly provides for the granting of rights under both copyright and patent, some of the licenses previously described in this book (and some of the ones that follow) implicitly provide such a grant. Because the granting of patent rights involves a number of issues distinct from those in granting rights under copyright law, you may want to review the discussion of patents in Chapter 1.

Paragraph 3 of the license states that the Licensor will make the source code of the licensed program available in some form, a term that is common to the open source licenses described later in this book.

3) Grant of Source Code License . The term "Source Code" means the preferred form of the Original Work for making modifications to it and all available documentation describing how to modify the Original Work. Licensor hereby agrees to provide a machine-readable copy of the Source Code of the Original Work along with each copy of the Original Work that Licensor distributes. Licensor reserves the right to satisfy this obligation by placing a machine-readable copy of the Source Code in an information repository reasonably calculated to permit inexpensive and convenient access by You for as long as Licensor continues to distribute the Original Work, and by publishing the address of that information repository in a notice immediately following the copyright notice that applies to the Original Work.

Paragraph 4 of the license delineates the limitations of the license and includes a non-endorsement provision similar to the one in the Apache License.

4) Exclusions From License Grant . Neither the names of Licensor, nor the names of any contributors to the Original Work, nor any of their trademarks or service marks, may be used to endorse or promote products derived from this Original Work without express prior written permission of the Licensor. Nothing in this License shall be deemed to grant any rights to trademarks, copyrights, patents, trade secrets or any other intellectual property of Licensor except as expressly stated herein. No patent license is granted to make, use, sell or offer to sell embodiments of any patent claims other than the licensed claims defined in Section 2. No right is granted to the trademarks of Licensor even if such marks are included in the Original Work. Nothing in this License shall be interpreted to prohibit Licensor from licensing under different terms from this License any Original Work that Licensor otherwise would have a right to license.

5) This section intentionally omitted.

Paragraph 5 speaks for itself. Paragraph 6 requires attribution of the Licensor in the source code of any derivative works. The utility of this paragraph is limited by the fact that the Academic License may not, as explained later, require Licensees to distribute source code along with derivative works.

6) Attribution Rights . You must retain, in the Source Code of any Derivative Works that You create, all copyright, patent or trademark notices from the Source Code of the Original Work, as well as any notices of licensing and any descriptive text identified therein as an "Attribution Notice." You must cause the Source Code for any Derivative Works that You create to carry a prominent Attribution Notice reasonably calculated to inform recipients that You have modified the Original Work.

Paragraphs 7 and 8 disclaim warranties and limit liabilities in ways substantially similar to provisions in the MIT, BSD, and Apache Licenses. The first full sentence of Paragraph 7 explicitly warrants that the copyright and patent rights granted by the Licensor are owned by the Licensor.

7) Warranty of Provenance and Disclaimer of Warranty . Licensor warrants that the copyright in and to the Original Work and the patent rights granted herein by Licensor are owned by the Licensor or are sublicensed to You under the terms of this License with the permission of the contributor (s) of those copyrights and patent rights. Except as expressly stated in the immediately proceeding sentence, the Original Work is provided under this License on an "AS IS" BASIS and WITHOUT WARRANTY, either express or implied , including, without limitation, the warranties of NON-INFRINGEMENT, MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE ORIGINAL WORK IS WITH YOU. This DISCLAIMER OF WARRANTY constitutes an essential part of this License. No license to Original Work is granted hereunder except under this disclaimer.

8) Limitation of Liability . Under no circumstances and under no legal theory, whether in tort (including negligence), contract, or otherwise, shall the Licensor be liable to any person for any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or the use of the Original Work including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. This limitation of liability shall not apply to liability for death or personal injury resulting from Licensor's negligence to the extent applicable law prohibits such limitation. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not apply to You.

The next paragraph, Paragraph 9, is an example of a license provision imposing , or attempting to impose, a generational limitation that puts substantial limitations on the licensing of derivative works, as opposed to requiring an attribution or prohibiting putative endorsements. Because of ambiguous drafting, it is not immediately apparent what this paragraph is attempting to accomplish, but it appears that the requirement that it imposes on licensees to ensure that licensees of their own, derivative, works are similarly bound is not as stringent as that of other licenses discussed later in this book. The paragraph begins:

9) Acceptance and Termination . If You distribute copies of the Original Work or a Derivative Work, You must make a reasonable effort under the circumstances to obtain the express assent of recipients to the terms of this License.

There are problems with this first sentence. First, it is not immediately clear that the licensor intends that the provisions of this license also govern the derivative works created by the licensee and derivative works created by the licensee's licensees and so forth. This sentence should probably be interpreted to mean that licensees assent to the proposition that the original work is in fact governed by the license; not necessarily that any derivative work be governed by the terms of that license. Second, and perhaps no less importantly, this sentence requires only that the licensee use "reasonable effort under the circumstances" to obtain assent of future licensees to the terms of the license, with regard both to the original and derivative works. A putative licensee, even one generation removed, could argue that because a previous licensee had not communicated these restrictions, the putative licensee believed that the work was bound by fewer than all the restrictions of the license or by no restrictions at all. The following sentence attempts to address this second problem.

Nothing else but this License (or another written agreement between Licensor and You) grants You permission to create Derivative Works based upon the Original Work or to exercise any of the rights granted in Section 1 herein, and any attempt to do so except under the terms of this License (or another written agreement between Licensor and You) is expressly prohibited by U.S. copyright law, the equivalent laws of other countries , and by international treaty.

As already noted, the statutory rights created by copyright bar any but limited use of a given work. The fact that a particular work is open source licensed does not remove its protection by the copyright laws. As the second sentence of this paragraph states, without the grant of rights by the license (along with the restrictions coupled thereto), no use of the copyrighted work is permitted. This "saves" the license and supports the argument that a putative licensee is bound by the terms of the license even if that licensee has not expressly assented to the terms of the license. Without some knowledge of the license, the putative licensee would have no reason to believe that he or she had any right at all to the work. Accordingly, such a putative licensee could be presumed to be "on notice" of the possibility of license restrictions and accordingly could be found to have legal liabilty for violating the terms of the license if he or she does not make sufficient efforts to determine the restrictions of the license. As discussed in Chapter 6, this provision, and similar ones in the licenses, is critical to the legal enforcement of open source licenses. The final sentence of this paragraph largely reiterates the effect of the second sentence: that use of the work is bound by the terms of the license and that exercise of rights under the license indicates consent to the restrictions imposed by it:

Therefore, by exercising any of the rights granted to You in Section 1 herein, You indicate Your acceptance of this License and all of its terms and conditions.

Paragraph 10 creates a disincentive for licensees to sue licensors for patent infringement. It is questionable how much this adds to the license, insofar as it seems unlikely that any person believing that he had or would have a legitimate claim for patent infringement against the creator of the work would use that work. Nonetheless, the license includes it, perhaps to avoid the unlikely, but undeniably awkward , situation in which the same person is suing the licensor and profiting in some manner from the use of the licensor's work.

10) Termination for Patent Action . This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, for patent infringement (i) against Licensor with respect to a patent applicable to software or (ii) against any entity with respect to a patent applicable to the Original Work (but excluding combinations of the Original Work with other software or hardware).

The remainder of the license provisions consists largely of terms common to commercial contracts. Paragraph 11 provides for choice of the jurisdiction in which suits under the license may be brought:

11) Jurisdiction, Venue and Governing Law . Any action or suit relating to this License may be brought only in the courts of a jurisdiction wherein the Licensor resides or in which Licensor conducts its primary business, and under the laws of that jurisdiction excluding its conflict-of-law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any use of the Original Work outside the scope of this License or after its termination shall be subject to the requirements and penalties of the U.S. Copyright Act, 17 U.S.C. 101 et seq., the equivalent laws of other countries, and international treaty. This section shall survive the termination of this License.

In general, choice of venue and choice of law provisions specifically identify the court and law that govern. For example, a typical provision might specify that "Claims arising under this contract may only be brought before courts of competent jurisdiction within the State of New York. The law governing the resolution of such claims shall be the law of the State of New York without giving effect to the choice of laws provisions thereof." Because of the open source nature of the license, however, and so that derivative works can be licensed under it without changing the text, the license tracks the jurisdiction in which suits can be brought (and the law that applies to the interpretation of the license) to follow the place in which the licensor resides or conducts its primary business. While this open-ended provision is somewhat problematic in that a licensee may face some uncertainty because the residence of a given licensor might be unknown to the licensee, it seems likely that this provision would likely be enforced by a court as long as the licensor's residence could be readily determined.

Paragraph 12 contains a provision also fairly common in commercial contracts:

12) Attorneys Fees . In any action to enforce the terms of this License or seeking damages relating thereto, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys' fees and costs incurred in connection with such action, including any appeal of such action. This section shall survive the termination of this License.

In all United States jurisdictions, parties to a suit bear their own costs for bringing the suit in most cases. Fee shifting provisions like this one, however, are generally enforced. While there is considerable debate about the social utility of this rule, known as the American rule (in contrast to the British rule, in which the prevailing party has historically been able to collect attorneys fees along with other damages), the balancing of the benefits of it are beyond the scope of this book. This provision is a fairly common one in contracts, but it has nothing to do with open source, except perhaps that it may encourage licensors to more vigorously pursue licensees who clearly violate the terms of a given license.

Paragraph 13 is also typical to commercial contracts, and it makes clear that the license is the only agreement between the parties.

13) Miscellaneous . This License represents the complete agreement concerning the subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

Such provisions, known as "merger clauses," are generally included in contracts to make clear that pre-existing written agreements or oral agreements are superseded by the particular contract. This provision operates on an open source license as it would in any other agreement. The second sentence is a severability clause, preserving the effect of other sections of the license if a section is found to be invalid.

Paragraph 14 defines "You" as it is used in the license to include agents of the licensee or other persons within the control of the licensee.

14) Definition of "You" in This License . "You" throughout this License, whether in upper or lower case, means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License. For legal entities, "You" includes any entity that controls, is controlled by, or is under common control with you. For 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.

This provision is probably not necessary. To the extent that any person or entity not under the control of a particular licensee exercises any of the rights described in Paragraph 1 of the license, they would likely be found to be directly bound by the license. The fact that they are associated with or controlled by another licensee would accordingly not matter. ^[4]

^[4] This provision is discussed further in Chapter 3 in connection with the Mozilla Public License.

Finally, Paragraph 15 of the license provides that:

15) Right to Use . You may use the Original Work in all ways not otherwise restricted or conditioned by this License or by law, and Licensor promises not to interfere with or be responsible for such uses by You.

This paragraph adds no restrictions on licensees not already articulated by the license, but rather adds an additional restriction on the licensor, i.e., non-interference in uses permitted by the license. This is a somewhat problematic provision, as it could be interpreted to create legal liability for licensors in situations in which the drafter of this license probably did not intend to create liability. For example, a licensor whose work competes directly with that of a licensee could, at least in theory, be liable for "interference" with sales of the licensed work. While this is probably unlikely, it is not impossible that such a lawsuit could be maintained . It is almost certainly not the result contemplated by the drafter of the license.

The final un-numbered paragraph of the license sets out that while licensors can use the license, they cannot modify its terms without permission.

This license is Copyright (C) 2003 Lawrence E. Rosen. All rights reserved. Permission is hereby granted to copy and distribute this license without modification. This license may not be modified without the express written permission of its copyright owner.