I am working on an open-source software project in academia. It is currently licensed under a modified BSD-style license that allows only unmodified, non-commercial usage. We are currently considering asking all (past and present) contributors to sign a Contributor License Agreement (CLA) allowing us to re-license the software in the future. In particular, we would like to have the option to make it commerically available.

We have a draft CLA (generated with the help of Harmony Agreements 1) that states:

We agree to license the Contribution only under the terms of the license or licenses which We are using on the Submission Date for the Material or any licenses which are approved by the Open Source Initiative [...].

We are unsure if this would allow us to do what we would like. In particular, we are wondering if this allows us to sell e.g. an MIT license for the software to external entities in exchange for monetary compensation and/or additional conditions? Is the act of "selling a license" via a contract considered licensing the contribution under the terms of said contract?

Any help would be gladly appreciated.

  • This reads like a request for legal advice, which we can't do: law.meta.stackexchange.com/questions/770/… – Patrick Conheady Oct 6 '19 at 10:33
  • It would help to specify the jurisdictions where you, the contributors and the prospective commercial customers reside. Copyright and contract law are different everywhere. – Patrick Conheady Oct 6 '19 at 10:55
  • In what sense is a licence that allows only unmodified, non-commercial usage a 'BSD-style licence'? Some more details in this regard, and in respect to the intended 'commercial availability' and 'additional conditions' would be helpful in providing an answer. If I may be blunt, normally if you want to dual-licence an open source project then you put it up-front in your CLA that you want the right to sublicence contributions on a proprietary basis. I don't understand why you would say you agree to keep the work open-source but then try to add non-open source conditions. – Patrick Conheady Oct 6 '19 at 11:29

If you have the permission of all the people who contributed code, you can change the license.

However, you should probably do that now so you don't have to keep track of tons of people.


Is the act of "selling a license" via a contract considered licensing the contribution under the terms of said contract?

Yes, it is. Giving someone a license is called "licensing". No matter if you do it for free or in exchange for something.

The section of the CLA template you quoted is meant to prevent exactly the thing you plan to do: Give away the software under a license the contributor does not agree with.

However, it says "or any licenses which are approved by the Open Source Initiative". The MIT license is approved by the OSI. So licensing the software under MIT would actually be allowed, even when it was not MIT-licenses when the author made their submission.

But it is a bit questionable if taking money to provide the software under MIT is a viable business model. The MIT license allows people to sublicense the project under the same or any other license. That means your customers are allowed to give your software away to other potential customers for less than you ask or even for free. Adding a clause which prohibits that would mean you are no longer using MIT. Or any other OSI-approved license, because free distribution is part of the open source definition of the OSI.

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