The Lerna project, a tool for managing JavaScript packages, previously licensed under MIT, recently (and briefly) added a statement purporting to revoke its license to “collaborators” with the US Immigration and Customs Enforcement (ICE).
At least one other contributor protested by asking the project to remove all his contributions. The license change was quickly retracted.
One of Lerna’s lead developers said in a comment, “All technology is political, open source is especially political. It would not exist if not for political reasons. Open sourcing something is in itself a political act.”
I’m not commenting here on whether it is right or wrong to apply license restrictions based on ethical or political views. It’s not generally unlawful to set whatever license restrictions you want, with a few limitations as to enforceability. It’s not the first time that has happened — the do-no-evil license of JSON (“The Software shall be used for Good, not Evil.”) is ubiquitous and widely tolerated. And strange license conditions, like the Chicken Dance License, have cropped up periodically.
But color me impressed: if you wanted a lesson on how not to draft or release a license restriction, this would be it. I think this gets the prize for most drafting mistakes in the least number of words.
- The phrase “shall not be granted” ought to make any licensing lawyer wince. Does this mean that the license was never granted? That is won’t be granted by the licensor(s) in the future? That a licensee must not grant it? (Just joking — there’s no sublicensing in open source.) The passive voice is a dangerous drafting technique. Perhaps it’s use here was a stylistic homage to the passive-voice MIT license itself: “Permission is hereby granted…” But seriously, the problem with passive voice is that it doesn’t identify the subject of the grant or covenant. At least the MIT license says “hereby granted,” indicating that the grant is made immediately. Unfortunately, there is case law saying that a covenant to grant (“shall grant”) is not a present grant of license, merely a promise to grant (or in this case, not to grant) later — and knowing the difference is one of the tricks of the licensing trade.
- The copyright notice suffers from a common and unfortunate tendency of open source authors to apply notices that are so ambiguous and generic that they no longer constitute a notice of anything. No specific date. No specific owner. The purpose of a copyright notice — assuming there is any remaining material purpose under current law — is to put the reader on notice of when the work was published and who claims the copyright. If you can’t say either, it’s best to omit a notice.
- What does it mean to “collaborate” with one’s own government? If a company is on the list but did not actually “collaborate” would this limitation still be effective? What if that collaboration is required by law? Would this only apply to companies that collaborated beyond the requirements of law? If not, is a license restriction that requires one to violate the law by, say, refusing a government subpoena or order, actually enforceable?
- Defined term “ICE” is never used. Just saying.
Laying aside pure drafting concerns, the re-licensing effort was criticized by developers for being done in the wrong way, at the wrong time in the development cycle. There is an interesting practical discussion on license change and versioning here.
The request of the contributor to remove contributions is also interesting. Presumably, any previous contributor to the project contributed under MIT (or less likely, another permissive set of terms). So as a baseline, such a contributor has no legal right under copyright to revoke his license. But perhaps the issue was that this new licensing statement purports to set terms on behalf of all “Lerna Contributors”? At least, it claims a joint (?) copyright by all the contributors. (Heaven help them if they try enforcing copyright terms imposed by a joint authorship team, one of which has left the fold.) Of course, any contributor can ask for his contributions to be removed on personal grounds, but if the contributions have been placed under MIT before, they couldn’t be removed on copyright grounds.
Below is the text of the restriction, which I have reproduced here before it disappears from the web entirely:
Copyright (c) 2015-present Lerna Contributors
The following license shall not be granted to the following entities or any subsidiary thereof due to their collaboration with US Immigration and Customs Enforcement (“ICE”):
– “Microsoft Corporation”
– “Palantir Technologies”
– “Amazon.com, Inc.”
– “Northeastern University”
– “Ernst & Young”
– “Thomson Reuters”
– “Motorola Solutions”
– “Deloitte Consulting LLP”
– “Johns Hopkins University”
– “Dell Inc”
– “Xerox Corporation”
– “Canon Inc”
– “Vermont State Colleges”
– “Charter Communications”
– “LinkedIn Corporation”
– “United Parcel Service Co”
A note: I know there has been a furor over Commons Clause lately, and I will post more about that eventually, as soon as I catch up. Some have suggested that the release of Commons Clause encouraged the Lerna project action. As far as I know they are unrelated, and it seems to me highly unlikely that the Lerna project was taking cues from Commons Clause.
