Licensing Issues With BPEL

[Danny van der Rijn <dannyv@tibco.com>]

As has been pointed out many times to me, I am not a lawyer.  However, given
that I see no lawyers discussing these issues, that leaves it up to the
technical committee to discuss these issues.

Note that one does not have to be a lawyer to discuss legal issues.  One
only needs to be affected by the issues.  The job of a lawyer is to codify
intentions in an unambiguous, if often unintelligible, fashion.    Those
intentions must come from somewhere.  And again, in the absence of other
discussions taking place elsewhere, it is necessary to voice intentions in
this committee that we wish to influence.

At the end of the process of this technical committee, a vote will be taken
on the specification.  It will be the only vote.  It is not possible, for
instance to vote Yes on the technical merits of the specification, and No on
the legal merits.  We're only given one shot.  If the goal of the
specification is to become widely adopted, the current legal situation will
prevent that, and therefore I believe that many of us will be forced to vote
No.

The following is a SHORT list that I came up with, in consultation with our
lawyers.  Note that any errors are mine, and were not made by my lawyers.
These issues all assume that cross-licensing will take place.  It would be
all the better if the Author Companies put their IP in the public domain.

) Each of the 5 licenses comes with different verbiage, terms, and methods
of executing them.  The 5 companies should develop a standard agreement,
with standard methods of execution.  While there probably need to be 5
licenses, there is little reason that they should be separate.  Our lawyer's
conservative estimate is that the current 5 licenses would require about 8
hours of time from a lawyer at approximately $350/hour.  That's $2800 for
each licensee that's just sunk into wasted time.  And that's if the company
just wants to accept the terms at face value.

) How much will it cost for each anal legal department to ask some subset of
these questions to the licensors and get them answered to their
satisfaction?

) Just as an example of the differences, SAP says that we may refer to an
executed agreement in press releases; IBM says we may not.  A difference
like this may seem trivial, but tracking these kinds of issues is expensive
enough for a single agreement.

) Any license that is granted to us, MUST be sublicensable.  The current
license from SAP requires that if we OEM a product which contains BPEL, our
OEM is not covered under our license.

) IBM prohibits a licensee from having products "being made by a third
party."  The prohibition is unclear as to whether it relates to contract
companies either for development, testing, or manufacturing.

) SAP's license requires licensed companies to get consent from SAP in the
event of a merger.  That hardly seems RAND.

If there is a desire to discuss a longer list, and I hope there will be, I
can bring my lawyers back into the discussion.

Danny van der Rijn
TIBCO Software