This is a guest post from Jim Farmer, Chairman of Instructional Media + Magic Inc. Jim has also written a series of feature articles on open source for Informa’s London-based Intellectual Property Magazine.
Higher education has traditionally been a knowledge “sharing” environment. Early software was exchanged without license and, in practice, without restrictions. As the monetization of intellectual property, including software, becomes pervasive more restrictive software licenses have been introduced and enforced. These licenses impose legal duties of the user of “open source software” that could be unexpected and have undesirable consequences.
The first license restrictions were a series of “copyleft” licenses that imposed a duty of a user who makes modifications of open source software to share these modifications with others. In addition, the terms and conditions of licenses of the modified software is required for all subsequent users as well. Richard Stallman is credited with launching the free software movement. He used software licensing to enforce this desired behaviour. In practice the open source community was already sharing software so the “copyleft” licenses were not a substantial burden. Disputes were avoided by an email or telephone request, almost always honoured.
Some open source software from higher education because commercial software products with proprietary licenses. Examples include North Carolina State University’s statistical package that led to SAS, and the University of Chicago’s package that led to SPSS. Their contribution was documentation and standardized stable versions of the software. Subsequently this strategy was used by Red Hat to introduce Red Hat Linux.
Extending Stallman’s practice of imposing duty, the recent and rarely used Affero license has imposed additional and potentially burdensome restrictions on distribution of modifications made to software used as a service over a network.
Higher education is becoming more sensitive to these license restrictions. There are three recent licensing choices that illustrate the trade-off decisions that were made.
edX Seeks More Software Users
Harvard University and MIT had adopted the Affero software license for their edX learning technology platform. In September, Ned Batchelder, edX Sofrtware Architect wrote “…one license does not fit all purposes, which is why we’ve decided to relicense one part, our XBlock API, under Apache 2.0.”
As part of its license compliance software and services, Black Duck compiles use of the various licenses. Using this data the edX shift from restrictive to permissive licensing is illustrated in Figure 1. The data suggests edX’s action was consistent with trends in open source licensing.
Figure 1 – Use of Open Source Software Licenses
Batchelder describes the motivation for the change:
The XBlock API will only succeed to the extent that it is widely adopted, and we are committed to encouraging broad adoption by anyone interested in using it. For that reason, we’re changing the license on the XBlock API from AGPL to Apache 2.0.
The Apache license is permissive: it lets adopters and extenders do what they want with their changes. They can release them under a copyleft license like AGPL, or a permissive license like Apache, or even keep them closed-source.
Using Black Duck data for 2009 and 2015, the licensing trends in Figure 2 show the sharp increases in use of the MIT and Apache permissive licenses.
Figure 2 – Change in Use 2009 to 2015
According to Black Duck’s data on the use of software licenses, Apache 2.0 – used by 19% – has moved from its 7th ranking to 3rd most used software license. The GNU General Public License is still the most frequently used at 25%. However the GPL license has lost 21.4% of user share since 2009 and Apache has gained 12.4%. The least restrictive MIT license grew from 3.3% to 19.0% during the same period to become the second most frequently used open source software license.
The least restrictive MIT license has few restrictions: You can not sue MIT that the software didn’t do what you thought it should—“fitness of purpose.” Also it mandates attribution via reproduction of the copyright statement.
There is also a difference based on the purpose of the license. Figure 3 shows the differences in use by software developers of open source software, on downloads of the software selected for use, and what companies are using. For enterprise use the Apache license is most used.
Figure 3 – License Use by Purpose
Figure 4 – Shift of Open Source Software to Permissive Licensing.
In December 2014 ZDNet’s Steven J Vaughan-Nicholas summarized::
“The three primary permissive license choices (Apache/BSD/MIT) … collectively are employed by 42 percent. They represent, in fact, three of the five most popular licenses in use today.” These permissive licenses have been gaining ground at GPL’s expense. The two biggest gainers, the Apache and MIT licenses, were up 27 percent, while the GPLv2, Linux’s license, has declined by 24 percent.
He also reported that in July 2013 Aaron Williamson, senior staff counsel at the Software Freedom Law Center, documented that 85.1 percent of GitHub programs had no license. He commented:
Yes, without any license, your code defaults to falling under copyright law. In that case, legally speaking no one can reproduce, distribute, or create derivative works from your work. You may or may not want that. In any case, that’s only the theory. In practice you’d find defending your rights to be difficult.
The primary edX learning system continues to use the Affero license. Apereo Foundation’s Sakai learning system is licensed under Apache; Moodle uses the GPL license.
edX’s move to a less restrictive license will likely increase use. To gain additional users, perhaps the Apache license should be used for the edX learning system as well.
Kuali Foundation Seeks to Protect Cloud User Market
Administrative software being developed by the participants in the Kuali Foundation was licensed under the Educational Community License (ECL)—an OSI (Open Source Initiative) approved special purpose license for higher education software based o the Apache license. In August the Kuali Foundation Chair Brad Wheeler announced “… the Kuali Foundation is creating a Professional Open Source commercial entity.” He also said “Kuali software now and in the future will remain open source and available for download and local implementations.” The same day the Kuali Foundation posted Brad Wheeler’s blog Kuali 2.0 FAQs. He wrote “The current plan is for the Kuali codebase to be forked and re-licensed under Affero General public License (AGPL). AGPL allows customers to download and use the code at will, but requires partners trying to monetize the software to contribute code changes back to Kuali. This is intended to discourage partners/Kuali Commercial Affiliates (KCAs) from receiving revenue from hosting Kuali software, but does not prohibit them.”
The Foundation asked its participants to transfer their software development to Kuali Inc.and use their proposed cloud-based systems. The Kuali Foundation continues to make available the current version of its software under ECL. The cloud versions also include software proprietary to Kuali Inc.
On September 8, 2014, Chuck Severance wrote :
… the successful use of AGPL3 to found and fund “open source” companies that can protect their intellectual property and force vendor lock-in *is* the “change” that has happened in [Kuali’s] past decade that underlies both of these announcements and the makes a pivot away from open source and to professional open source an investment with the potential for high returns to its shareholders.
Severance suggested how to achieve “high returns:”
First take VC [venture capitalists] money and develop some new piece of software. Divide the software into two parts – (a) the part that looks nice but is missing major functionality and (b) the super-awesome add-ons to that software that really rock. You license (a) using the AGPL3 and license (b) as all rights reserved and never release that source code.
You then stand up a cloud instance of the software that combines (a) and (b) and not allow any self-hosted versions of the software which might entail handing your (b) source code to your customers.
On October 2 at Educause, reporting for e-Literate on the Kuali session, Phil Hill identified “(b):”
The back-and-forth involved trying to get a clear answer, and the answer is that the multi-tenant framework to be developed / owned by KualiCo will not be open source – it will be proprietary code. I asked Joel Dehlin for additional context after the session, and he explained that all Kuali functionality will be open source, but the infrastructure to allow cloud hosting is not open source.
Referring to multi-tenancy, Inside Higher Ed’s Carl Straumsheim described the purpose of “(b)” confirming Chuck Severance’s scenario:
“I’ll be very blunt here,” [Kuali’s Barry] Walsh said. “It’s a commercial protection — that’s all it is.”
In a 10 September blog post Locked into Free Software? Unpicking Kuali’s AGPL Strategy OSS Watch’s Scott Wilson considered the implications of AGPL. He pointed out “The GPL license requires any modifications of code it covers to also be GPL if distributed [emphasis added]. The use of a cloud-based service is not considered distribution of code. So a user could offer a cloud service without making modifications available to the community. Wilson wrote:
The AGPL license, on the other hand, treats deployment of websites and services as “distribution”, and compels [his emphasis] anyone using the software to run a service to also distribute the modified source code.
Wilson also reported Bradley Kuhn, one of the original authors of AGPL, in a talk at Open World Forum in 2012 said “… at that time, some of the most popular uses of AGPL were effectively “shakedown practices” (in his words). This unfortunate characterization may rarely be true.
The AGPL license does meet the Open Source Initiative’s criteria of an open source license. But the pressures of monetization causes its terms to be used inconsistent with the connotation of “open source.”
Oracle Builds a Community?
On September 29th at Oracle World, Oracle announced their Oracle Student Cloud and their investment in the Oracle Customer Strategic Design Program. Embry-Riddle Aeronautical University, University of Texas System and the University of Wisconsin-Madison will participate “to provide guidance and domain expertise that will help shape the design and development of Oracle Student Cloud. A press release described the initiative:
- Each university will work with Oracle through significant milestones and releases, providing guidance and expertise to develop an industry-leading product. The growth of non-traditional programs is an important trend for these customers, and the first release of Oracle Student Cloud is expected to include flexible core structures and an extensible architecture to manage a variety of traditional and non-traditional educational offerings.
- Oracle Student Cloud will feature a compelling mobile user interface that enables customers to extend, brand, and differentiate the student experience for each institution.
- The first phase of Oracle Student Cloud is designed to support the core capabilities of enrolment, payment, and assessment. Oracle Student Cloud will embed CRM-based functionality throughout the solution to promote engagement and collaboration, along with a business intelligence foundation to provide customers with actionable insight into their student operations.
The Design Program could be interpreted as combining the contributions of a community as found in open source development, and a proprietary model that would use the standard Oracle license. If successful this innovation could benefit both Oracle and colleges and universities.
In an October 7 blog Cole Clark, Global Vice President Education and Research industry, reflected on Oracle World. He included Stanford University as a participant. He also said a fifth partner in Europe would be named the following week at the Utrecht NL Higher Education User Group meeting.
We believe this [Oracle Customer Strategic Design Program] gives us a broad spectrum of the higher ed panoply from which to draw a great deal of insight and council [counsel] as we build the next generation student system in the cloud with mobile and social attributes at the core of the development initiative.
He also described the role of open source software:
Don’t get me wrong; there are definitely areas where Kuali (and other open source initiatives) fill gaps that the private sector will likely never pursue – Coeus [research administration] and the open library environment are excellent examples. Parts of Unizen may be another. But in the broader areas … where ample (and growing) competition exists to drive innovation up and costs down, there is no justification for investing shrinking resources in higher education on software development and support.
The description of contribution expected of the participants—guidance and domain expertise—and their diverse needs and competencies suggest functional requirements and designs of student services that improve the Oracle software. The reference to the growth of non-traditional programs demonstrated sensitivity to unfilled needs of current student systems. If these are incorporated into the Oracle product, it would benefit their college and university customers. And perhaps be available earlier than other alternatives.
Incorporating customer feedback on products is becoming a standard industry practice for consumer goods. If broadly implemented Clark’s innovation could change the relationship between higher education and software suppliers.
There is one concern. Oracle declined to answer the question whether the participants would be required to sign non-disclosure agreements. It they are, many of the benefits of the broad open communications found in open source development projects may be lost.
- The data on the shift from restrictive to permissive licensing suggests, but does not confirm, broader participation and use of software using permissive licenses. edX may want to consider relicensing the learning platform itself using an Apache license to attract more users of its software
- Kuali Inc.’s experience introducing the Aferro license demonstrates how restrictions can be perceived based, in part, on the intent of the copyright holder. The many yet-undefined terms that could be a “cause of action” enabling a copyright holder to bring a legal action against a user presents risks that advice of a licensing specialist or an intellectual property attorney may be needed to fully understand.
- Oracle Higher Education may benefit colleges and universities by introducing broad collaboration similar to open source communities. That should be encouraged. But implementation may be fragile in the sense participants, users, and prospects are likely sceptical of success. Complete transparency and open communication about the work of the Strategic Design Program may make the true purpose better known and results more widely used.
The emergence of “intellectual property”—software licenses in these cases—has created monetary incentives for copyright holders. Assessment of licensing restrictions and risks should now be incorporated into all information technology decisions.
This guest post is (c) Jim Farmer, and is licensed under the Creative Commons Attribution 4.0 International license. The graphic in Figure 4 is by Donnie Berkholz of RedMonk, and licensed under the Creative Commons Attribution ShareAlike 3.0 license.