OPHI Document title: ophi/prposed terms for the ophi licensing agreement
Date: 11/5/2003
Status: Draft
Document: openphi.mit.edu/.... for
Please send any comments on the document to Marshall Van Alstyne
Author of this version: Licensing group
For more information check the Open Process Handbook Initiative at: http://ccs.mit.edu/ophi/

 

Proposed licensing terms for Process Handbook Intellectual Property

 

 

1)       Definitions of terms:

a)       The Process Handbook Software (PHS) means the software programs for the Process Handbook (PH).

b)       There are currently two versions of the Process Handbook Software: 

i)         The version developed at MIT (MIT PHS)

ii)        The version developed at Phios (Phios PHS). 

c)       Both versions of the Process Handbook Software have both Source Code and Object Code versions.

d)       The Basic Content of the Process Handbook includes all the content of the Process Handbook developed at MIT and any content developed by Phios which Phios chooses to designate as “Basic Content”.

e)       The Process Handbook Patents means the patents issued to MIT (and licensed to Phios) which cover the Process Handbook (see Appendix A).  These patents give the rights to develop new software with the functionality described in the patents.

f)         The Basic Process Handbook Intellectual Property (PHIP) includes all of the above.

g)       The PH Extensions include any intellectual property that is based on or produced using the Basic PHIP. 

[Issue:  We need to more carefully define in legal terms what we mean by “based on or produced using”.  The accompanying scenarios give examples of the effects we hope to achieve.  At a minimum, the PH Extensions should include any software or content considered derivative works (under copyright law) of the Process Handbook Software or the Basic Content of the Process Handbook and any systems that would be considered infringements of the Process Handbook Patents (under patent law).]

h)       The PH Extensions include two kinds of material:

i)         Public PH Extensions that are freely available to the public under the terms described below.

ii)       Proprietary PH Extensions that a person or organization intends to sell under the terms described below.  

i)         The Public PH includes the Basic PHIP and all PH Extensions designated by their creators as Public.

                       

2)       Under this license, all the Public PH will be available for anyone to use at no cost.  As a condition of this free license, all PH Extensions are subject to the conditions below. 

 

 

3)       Users are guaranteed that they will continue to have free access to the Public PH in perpetuity.  This free access to the Public PH includes the right to use, reproduce, distribute, and permit others to copy, modify, translate into non-English languages, and further distribute via other media now known or hereafter developed.

 

4)       Subject to the exceptions noted below, users who create PH Extensions must make their Extensions available to the general public in one of two ways:

 

a)       Free distribution.  They can make any of their Extensions available for free to the general public subject to this same license.  There will be no licensing fee or royalties required of individuals or firms who chose this option.

 

b)       Paid distribution.  They can make their Extensions available for sale to the general public for a certain period of time (called the Proprietary Period). If Users choose to sell their Extensions in this way, then they can set any price they want, and they will be required to pay a royalty to Phios / MIT for any revenue they receive. As specified in the attached Royalty Schedule, the royalty rates are based on the duration of the Proprietary Period.  The longer the Proprietary Period, the higher the royalty rates.  These royalty rates are default rates, available automatically to anyone under this contract.  Users who believe their special circumstances might warrant different arrangements can always negotiate separately with Phios.

 

c)       In both cases, authors of a PH Extension must place a non-exclusive copy of the Extension in escrow with Phios in order to ensure compatibility and broad free access on expiration of the proprietary period. 

 

5)       We expect that users who create PH Extensions will want to create early “draft” or “test” versions of the Extensions that are not suitable for sharing with the public.  Therefore, the requirement to make Extensions available to the general public (specified in item 4) does not apply to Extensions that are created and used by only a single individual or that are shared with only one additional person (e.g., a “reviewer”).  However, users who create Extensions that are shared with 2 or more people other than the original developer are subject to the requirements of item 4.

 

6)       Note that, in either of the cases listed in item 4, users cannot restrict the distribution of their Extensions to a subset of the general public (such as members of their own company or customers who have already paid them for something else).  The purpose of this requirement is two-fold: 

 

a)       to promote wide distribution of PH Extensions (and the social value that results from such distribution), and

b)       to prevent users from trying to avoid paying royalties by restricting access to their Extensions to people who have already paid them for something else (ie., "bundling" PH Extensions with other products or services and thereby underpricing the PH Extensions).

 

[Issue:  Requiring people to pay a license fee if they want to keep their extensions private will presumably deter some people from using or extending the Process Handbook at all.  How significant is this effect likely to be?]

 

7)       In either of the cases listed in item 4, users who distribute Extensions must include attribution to the creator(s) of the Extensions.  The form of this will be the same as that of the LINUX credits file. This includes name, place of origin, affiliation, date, and nature of contribution.

 

8)       In either of the cases listed in item 4, part of making Extensions available to the general public includes posting them on a central repository. 

 

a)       For free distributions, the entire Extension will be accessible by the general public.

 

b)       For paid distributions, the entry must include an accurate description of the Extension and instructions about how to buy it. 

 

c)       Phios, at its discretion, will have the option of mirroring paid distribution offers at its central repository.  All fees collected will go to the sellers with only a xx% (very small e.g. 2%) handling fee.

 

9)       Users who do not want to be bound by these conditions of mandatory public distribution can purchase the software from Phios instead of receiving it for free.  In this case, they can use any kind of restricted distribution they want, subject to the terms of the agreement established as part of the sale.

 

10)   Notwithstanding the above, if any part of the Public PH is adopted as part of a standard by an “approved” standards body, then anyone who complies with that standard will automatically be granted a free license to use whatever parts of the Public PH are necessary to comply with the standard.  This free license will give people the right to use those parts of the PHIP without any obligation to pay royalties for commercial sales or to make their contributions based on those parts available to the general public.

Appendix A

Royalty Schedule

 

 

[to be added]
Appendix B

Process Handbook Patents

Malone, T.W., Crowston, K., Lee, J., Pentland, B., & Dellarocas, C. Computer system for displaying representations of processes.  US Patent No. 5,819,270 (October 6, 1998).

Malone, T.W., Crowston, K., Lee, J., Pentland, B., & Dellarocas, C. A computerized handbook of processes.  European Patent No. 0692113 (October 14, 1998). Canadian Patent No. 2,156,917 (April 22, 2003).

Malone, T.W., Crowston, K., Lee, J., Pentland, B., & Dellarocas, C. Computer handbook of processes.  US Patent No. 6,070,163 (May 30, 2000).  US Patent No. 6,349,298 (February 19, 2002).

 

Appendix C

Miscellaneous Legal Provisions That Should Probably Be Included in the License

 

 

1)       A notice of this license should be included in all Extensions so that others using the Extensions are aware of the license terms in effect.

 

2)       This license may only be translated for explanatory purposes.  Translations are not considered binding.

 

3)       <Mozilla 3.7. Larger Works>
You may create a Larger Work by combining Covered Code and content with other code and content not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.

 

4)       <GPL 4>. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

 

 

5)       <based on GPL #9> Phios may publish revised and/or new versions of the Flexible Open License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.

 

6)       <GPL 11>. NO WARRANTY.  BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

 

7)       <GPL 12>. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

8)       <LGPL 12>. If the distribution and/or use of the Library is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Library under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.

 

9)       <Mozilla 4 - Inability to Comply Due to Statute or Regulation>  If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code <or content?> due to statute, judicial order, or regulation then You must: (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect. Such description must be included in the LEGAL file described in Section 3.4 <section “3.4” not included here yet> and must be included with all distributions of the Source Code. Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.

 

10)   <Mozilla 8. TERMINATION>

8.1.  This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses to the Covered Code which are properly granted shall survive any termination of this License. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.

8.2.  If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as "Participant")  alleging that:

(a)  such Participant's Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either: (i)  agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant.  If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.

(b)  any software, hardware, or device, other than such Participant's Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant.

8.3.  If You assert a patent infringement claim against Participant alleging that such Participant's Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.

8.4.  In the event of termination under Sections 8.1 or 8.2 above,  all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination.