Academic or Reciprocal?

The academic and reciprocal licenses described in this book so far have been very different from each other. This is at least in part because the two major categories of licenses ”academic (BSD, MIT, Apache, etc.) and reciprocal (GPL, MPL, CPL, etc.) ”have very different roots in the open source community, and they developed from different core philosophical beliefs about software freedom.

Proponents of academic licenses demand the freedom to incorporate open source software into any kinds of works, including proprietary works. Proponents of reciprocal licenses believe that freedom lies in a large public commons of software that grows through the contribution of derivative works back to the commons.

Because of their very different ancestry, good licensing concepts seldom crossed the license category boundaries. Academic licenses remained brief and vague like the BSD, while reciprocal licenses grew to include provisions relating to patents, source code publication, and protection of contributors' integrity. But times are changing. Efforts are now underway within some open source projects to relicense their software under more robust academic licenses, but that process is slow. (I discuss relicensing in Chapter 10.) For example, the Apache project has just approved a new version of its license ”thus inevitably rendering partly obsolete my discussion of the older Apache license in Chapter 5. The new Apache license is much closer in language and structure to the CPL, although it does not include reciprocity obligations.

Another reason that open source licenses vary so much is that licensing often reflects corporate intellectual property policies of licensors ”and those policies vary widely. As open source licenses began to deal with patents and other forms of intellectual property and with the complex commercial laws that relate to software, they evolved into complicated legal documents with their own special rules about what licensees owe back to the public commons. As their corporate authors began to deal with important intellectual policy issues that the GPL left out, reciprocal licenses began to resemble the traditional license agreements that were used for proprietary software.

I have written two licenses that cross that academic/reciprocal divide. These licenses reflect one core set of provisions applicable to both academic and reciprocal open source licensing. Only in a few specific places do the licenses differ , and those few places relate solely to the reciprocity obligation.

The Open Software License (OSL) is a reciprocal license. The Academic Free License (AFL) is the exact same license without the reciprocity provisions. Because these two licenses are direct and short ”less than eight pages in the Appendices ”there is some prospect that licensors and licensees will actually read and understand the licenses rather than just click "I ACCEPT" when the open source license is presented for approval.

Both the OSL and AFL are unilateral contracts . That means that the licensor is the only one making promises , although the license also establishes certain conditions that must be met by all licensees. As with all unilateral contracts, licensees must satisfy the conditions ”including the reciprocity condition ”in order for them to enforce the promise by the licensor that permits them to exercise otherwise exclusive copyright and patent rights.

I will describe these two licenses in this chapter differently than I did for earlier licenses. I will explain each license section in turn , noting the four places where the AFL differs from the OSL because of the reciprocity provision. But then I will also describe how each section compares to provisions in the other licenses. This chapter, then, can be read as a summary of open source license provisions in all the licenses in this book.

Every license described in this book guarantees the five Open Source Principles that I listed in Chapter 1 ”but they do it in different ways. You will immediately recognize as I compare licenses in this chapter that the differences among licenses are often subtle. Some licenses rely on the definition of derivative work ; others add or subtract from that concept for reciprocity purposes. Some licenses contain express patent grants, others do not; every express patent license contains a field of use restriction of some sort .

This chapter is for comparison purposes. I will leave to the next chapter the important issues of choosing an appropriate open source license among the alternatives available to you.