[od-discuss] Fwd: [License-review] Request for approval by license steward: Tidepool Open Access to Health Data Software License

[Mike Linksvayer]

This TOAHDSL is at the least a curiosity for the Open Definition
(which is referenced in a license condition).

(I highly doubt it is an open source license, as not permitting using
with non-open data would be a restriction on field of endeavor. But a
GPLv3 license will apparently also be offered, so the software will
still be open source; I wonder if they considered a GPL
exception/additional permission rather than a separate license.)

I enjoy seeing this as I think the intersection of open data and
software is huge and important, to the extent it is a sad thing they
are considered separate topics, movements, etc. But trying to
condition one on the other, in this case open data on open software,
and more narrowly in cases like open data/content licenses conditioned
on no technical restrictions, seems to me to point to the limited
effectiveness of licensing as a pro-sharing regulatory mechanism, vs
strong effectiveness as an allow-sharing/collaboration mechanism.
Which means non-license regulatory mechanisms need to be prioritized.

Mike

---------- Forwarded message ----------
From: Howard Look <howard at tidepool.org>
Date: Sat, Oct 5, 2013 at 11:58 AM
Subject: [License-review] Request for approval by license steward:
Tidepool Open Access to Health Data Software License
To: license-review at opensource.org


Hello!

== Overview ==

My name is Howard Look. I am President/CEO of Tidepool Project. We are
a non-profit, (soon to be) open source project creating an open
platform and applications to help reduce the burden on people with
Type 1 Diabetes. We are proposing that we a new create a new license,
the Tidepool Open Access to Health Data Software License.

Our company and efforts are described here:
http://tidepool.org

Our rationale and proposed license strategy is detailed here:
http://tidepool.org/blog/2013/9/17/wheres-the-code-or-a-funny-thing-happened-while-on-the-way-to-an-open-source-license

The draft license is here (and in plain text below):
http://tidepool.org/license

FAQ is here:
http://tidepool.org/tidepool-license-faq

== Rationale ==

We want to require applications, devices and services to keep health
data open and accessible to patients, their designated caregivers.

We could not find a source license that included an open data
provision. Various open data licenses were close (see
http://opendefinition.org/licenses/), but they covered the data and
not the software or devices creating the data. They also require open
access to everyone, which is not appropriate for private health data
where the patient should choose who has access to their data.

We intend for the Tidepool license to be reusable by others. Our
initial intent is to license the code created by the Tidepool project,
which makes it easier to gather data from various diabetes devices,
and to analyze that data in intuitive and actionable ways.

== Distinguish ==

The Tidepool license is permissive as to source code, and "copyleft"
as to the open data requirement. The license is most similar to the
Apache v2 license, though with the addition of the open data
provision.

== Legal Review ==

The license was drafted by Heather Meeker of Greenberg Traurig, who
also participated in the creation of the Mozilla licenses.

We have asked for legal review from institutions that we hope to
collaborate with, so far UCSF and Stanford, as well as from medical
device companies such as Medtronic and Dexcom.

UCSF has concerns about the patent provision and it's broad reach
across the UC system. We are awaiting further clarification about
whether this is a unique to the Tidepool license, or whether they have
similar concerns about they Apache license, for example.

We have not received any other legal review.

== Other Feedback ==

So far, the feedback on our plan falls into these rough buckets:
0 - Only use GPLv3. Truly free and open software is the only way to go
for medical devices and therapy software.
1 - Steer clear of GPL at all costs. It's a third rail and will cause
enterprises to not look at your code. Not worth it.
2 - The dual-license approach is way more confusing than it's worth.
3 - Doing a new permissive license is more confusing than it's worth.
Just release it under MIT/BSD/Apache and let it speak for itself.
4 - We love that you are doing a new permissive license and totally
agree that patients must own and have access to their own health data.

== Proliferation category ==

We hope that the Tidepool license is reusable, and put it in the
category of "Special purpose licenses." We hope that it is reusable by
other projects delivering hardware and software medical technology. We
discussed this, for example, with members of the Implanted Cardiac
Defibrillator community, who have similar desires as the diabetes
community for open patient access to data.

Please let me know if you have any further questions. Thanks in
advance for your feedback and consideration.

Regards,
Howard


[DRAFT - This draft is open for public review and comment. Please
email your comments to legal at tidepool.org or comment on the associated
blog post at http://tidepool.org/blog/2013/9/17/wheres-the-code...
published September 17, 2013.]

TIDEPOOL OPEN ACCESS TO HEALTH DATA SOFTWARE LICENSE V1

This license governs the use of the software to which this license
notice is applied (“Software”). You are not required to accept these
license terms; however, nothing else grants you permission to modify
or distribute the Software or its derivative works.  The purpose of
this license is to ensure that any use of this Software is conditioned
upon making Health Data collected or processed by the Software Open to
the Data Owner or any party authorized by the Data Owner, and this
license should be interpreted in service of that purpose.

1. Definitions.  As used in this license, the following terms have the
following meanings.

A “Contribution” is the Software, or any modification or addition to
the Software made available under this license.

A “Contributor” is any person or entity that makes available any
Contribution under this license.

“Data Owner” means the natural person to whom the Health Data applies.

“Distribute” means to distribute, transfer a copy of, or otherwise
make available (including via network access).

“Health Data” means data pertaining to the physiological functions of
a natural person, including any information or data specific to
understanding the operation, safety or efficacy of a device or service
that accompanies, is assistive in understanding, or generates such
data.

“Licensed Claims” are all claims in issued patents or pending patent
applications owned or controlled by any Contributor or any of its
Subsidiaries, now or in the future, having claims that, absent the
license granted in Section 2(B), would be infringed by the making,
having made, use, sale or other exploitation of that Contributor’s
Contribution, or by the combination of the Contribution with the
remainder of the Software (where such infringement would not arise
based on the Software standing alone without the Contribution).

“Open” as applied to Health Data will have the meaning ascribed to
such term by the Open Definition promulgated at opendefinition.org,
version 1.1 and any later version; provided, however, that no
condition of attribution will be applied to use of Health Data and the
Health Data need not be made available or accessible to any party
other than the Data Owner or parties authorized by the Data Owner.
For avoidance of doubt, as applied to Health Data under this license,
“Open” means that in the event you apply any encryption or obfuscation
to the Health Data using the Software, you must provide the Data Owner
with any encryption keys or other suitable means, free of charge, to
access such Health Data, in a manner sufficient to allow a Data Owner
with ordinary skill and knowledge to extract and store the Health Data
in a non-proprietary format, in both human-readable and
machine-accessible forms. When you provide Health Data in
machine-accessible forms, you must also provide data format
descriptors suitable for other programs to read the Health Data.

Any reference to the “Software” includes the Software, in whole or in
part, in any medium or any format (such as binary or source code).

A “Subsidiary” is an entity that is controlled, directly or
indirectly, by a Contributor.

In this license, “you” refers to any recipient of the Software.

2. Grant of Rights

(A) Copyright Grant. Subject to the license conditions and limitations
in section 3, each Contributor hereby grants you a non-exclusive,
perpetual, irrevocable, worldwide, fully paid-up, royalty-free
copyright license to reproduce, prepare derivative works of, and
Distribute its Contribution, in whole or in part, or any derivative
works thereof that you may create under the foregoing license grant.

(B) Patent Grant. Subject to the license conditions and limitations in
section 3, each Contributor hereby grants you a non-exclusive,
worldwide, royalty-free license under the Licensed Claims to make,
have made, use, sell, offer for sale, import, and otherwise dispose of
its Contribution, and to practice any method embodied therein.

(C) No Sublicense.  This license does not grant you the right to
sublicense the rights granted to you in this license.  Each time you
Distribute the Software, the recipient automatically receives a
license directly from the Contributors, subject to the terms of this
License.

3. Conditions

(A) License Notice. If you Distribute the Software, whether in source
code or binary format, you must provide the recipient with a copy of
this license, which will govern the Software.  Such notice may be
delivered via any reasonable means that gives the recipient effective
notice.

(B) Defensive Termination.  If you bring a claim against any
Contributor alleging that the Software directly or indirectly
infringes any patent claim, the patent license granted to you under
Section 2(B) will automatically terminate.

(C) Open Health Data.  You must ensure that the Health Data remains
Open to its Data Owner for a period of three years after the Health
Data is first generated.

(D) Notices.  If you Distribute the Software, you must retain all
copyright notices that are present in the Software.

(E) Source Code Distribution.  If you Distribute the Software or any
derivative work thereof in source code form, you may do so only under
this license by including a complete copy of this license with your
distribution.  For clarity, any source code file that does not contain
any portion of the Software (other than interface definitions as
necessary to interoperate with the Software) is not considered a
derivative work of the Software. You may Distribute the Software in
binary form under terms of your choice, so long as any license to
redistribute the Software includes all of the conditions in this
Section 3.  For clarity, this license does not require you to deliver
any source code to any recipient, except to the extent it may be
necessary to comply with the conditions regarding Open Health Data in
Section 3(C).

(F) Disclaimer.  The Software is provided "as-is." All Contributors
hereby disclaim, to the maximum extent possible under law, any and all
warranties, guarantees or conditions, express or implied.


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