What’s Your (IP Due Diligence) Type?
Long-time Eclipse Committer, Ian Bull initiated a interesting short chat on Twitter yesterday about one big challenge when it comes to intellectual property (IP) management. Ian asked about the implications of somebody forking an open source project, changing the license in that fork, and then distributing the work under that new license.
If someone forks an OSS project and changes the license (GPL->MIT), and someone else uses that forked project, who faces the legal problems?
— Ian Bull (@irbull) January 12, 2017
We can only surmise why somebody might do this (at least in the hypothetical case), but my optimistic nature tends toward assuming that this sort of thing isn’t done maliciously. But, frankly, this sort of thing does happen and the implications are the same regardless of intent.
Even-longer-time Eclipse Committer, Doug Schaefer offered an answer.
@irbull Certainly both are violating the license the copyright holder put on the work. That’s why the SCO thing was so huge.
— Doug Schaefer (@dougschaefer) January 12, 2017
The important takeaway is that changing a license on intellectual property that you don’t own is probably bad, and everybody who touches it will potentially be impacted (e.g. potentially face litigation). I say “probably bad”, because some licenses actually permit relicensing.
Intellectual property management is hard.
— Wayne Beaton (@waynebeaton) January 12, 2017
The Eclipse Foundation has a dedicated team of intellectual property analysts that do the hard work on behalf of our open source project teams. The IP Team performs analysis on the project code that will be maintained by the project and for third-party libraries that are maintained elsewhere. It’s worth noting that there is no such thing as zero risk; the Eclipse IP Team’s work is concerned with minimising, understanding, and documenting risk. When they reject a contribution or third-party library use request, they do so to benefit of the project team, adopters of the project code, and everybody downstream.
In yesterday’s post, I introduced the notion of Type A (license certified), or Type B (license certified, provenance checked, and scanned). The scanned part of Type B due diligence includes—among many other things—the detection of the sort of relicensing that Ian asked about.
Since we don’t engage in the same sort of deep dive into the code, we wouldn’t detect this sort of thing with the license certification process that goes with Type A. That is, of course, not to say that it’s okay to use inappropriately relicensed third-party code in a Type A release, we just wouldn’t detect it via Type A license certification due diligence. This suggests a heightened risk associated with Type A over Type B to consider.
Type B due diligence is more resource intensive and so potentially takes a long time to complete. One of the great benefits of Type A, is that the analysis is generally faster, enabling a project team to get releases out quickly. For this reason, I envision a combination approach (some Type A releases mixed with less frequent Type B releases) to be appealing to many project teams.
So project teams needs to decide for themselves and for their downstream consumers, what sort of due diligence they require. I’ve already been a part of a handful of these discussions and am more than happy to participate in more. Project teams: you know how to find me.
It’s worth noting that Eclipse Foundation’s IP Team still does more due diligence review with Type A analysis than any other open source software foundation and many commercial organisations. If a committer suspects that shenanigans may be afoot, they can ask the IP Team to engage in a deeper review (a Type A project release can include Type B approved artifacts).
April wrapped up the Twitter conversation nicely.
— 四月とApril (@ShigatsuToApril) January 12, 2017
Indeed. Kudos to the Eclipse Intellectual Property Team.
If you want to discuss the differences between the types of due diligence, our implementation of the Eclipse IP Policy changes, or anything else, I’ll be at Eclipse Converge and Devoxx US. Register today.