Can employee in R&D of a commercial company use Skyline?

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Can employee in R&D of a commercial company use Skyline? george wang cal  2019-09-03
 

Hello,
I could not find anywhere else to pose this question so if there is a person I should contact please let me know. I am an employee at a commercial biotech company and our team wishes to use Skyline as part of our R&D for proteomics development. Our legal team found two components that cannot be used commercially, thus right now it appears we can't legally use Skyline. These are part of the Apache license:

  1. Thermo-Scientific MSFileReader Library
  2. Waters Raw Data Access Component Library

I wanted to ask if there is any way to remove these components and use the remaining components of the Apache license?

Thanks,
George

 
 
Brendan MacLean responded:  2019-09-03

Hi George,
I believe this is a misunderstanding of the license. I was intimately involved in negotiating these licenses, and the intention was not to limit commercial use by the end-user, but instead to limit the ability of software developers to use the license to create derived works for commercial gain.

Neither Skyline nor ProteoWizard is software for commercial gain, which is the important distinction. The end-result software can be used by anyone free of charge, but it cannot be repackaged and sold for commercial gain without renegotiating a separate license with the instrument vendors that impose this limitation.

We very explicitly wanted for-profit use of Skyline and ProteoWizard to be possible and we believe both have seen a lot of that without any kind of intervention from the instrument vendors.

Sorry to hear this is not clearer to your legal department.

--Brendan

 
george wang cal responded:  2019-09-03

Hi Brendan,

Got it, that makes a lot of sense. Thanks for clarifying this. We are just interested in using Skyline to develop a uniform way to analyze proteomics data, so I think we would be within the license agreements. I will let my legal department know this distinction.

Best,
George

 
Brendan MacLean responded:  2019-09-03

Thermo:
You may not commercially exploit this Software or products that incorporate this Software without the prior written consent of Licensor. Commercial exploitation includes, but is not limited to, charging a purchase price, license fee, maintenance fee, or subscription fee; or licensing, transferring or redistributing the Software in exchange for consideration of any kind.

I think this is pretty clear on "commercially exploit" the DLL to charge money for its use, support, maintenance, etc. This is written to allow the free distribution by Skyline and ProteoWizard while avoiding derived for-profit software.

Waters:
PW's end-users, provided that PW's end-users may only use, and distribute the WRDAC for noncommercial purposes, per the terms of the License (as defined herein).

...PW may not commercially exploit the WRDAC or products that incorporate the WRDAC. Commercial exploitation includes, but is not limited to, charging a purchase price fee, license fee, maintenance fee, or subscription fee.

I think the key clause above is "as defined herein", which is followed with the definition below which is about commercial exploitation of the software, i.e. about creating software for fees using the WRDAC DLLs. Though, I agree that I do not like legal wording which seems to forbid something only to later define what it forbids in more limited terms. And I see now that the lawyers inserted the catch-all clause "but is not limited to" even in the commercial exploitation definition. But, I promise we tried to write the license to allow end-users to be using the software for their own commercial benefit, just not to create new derived works for commercial benefit.

So, I think if you are not trying to build a derived work which you will profit from by selling: 1) the derived software, 2) license to use it, 3) a support fee, 4) a subscription fee. Then you are covered by this license. You can use it for your own purposes, even if there is associated commercial gain. You just can't sell these libraries in any way.

Does that make sense?

 
Brendan MacLean responded:  2019-09-03

Hi George,
Thanks for bringing it up. Hope my responses will make it clear for your legal team and anyone else with this question. Skyline itself is intended to allow its use in a commercial setting. All of the 6 instrument vendors we work with know this and now even fund Skyline development in full support of this.

If anyone really has difficulty convincing their legal department this is so, please let us know and we will contact the affected instrument vendors, as I am sure this would motivate them to change the wording in their license terms. Though, most of these licenses have been in effect for nearly 10 years and the software has seen a lot of use in that time inside for-profit companies.

--Brendan

 
george wang cal responded:  2019-09-03

Hi Brendan,
Yes, what you wrote makes sense. Really appreciate you going into detail to clarify and assuage our concerns about these licenses. I will let my legal team know.
-George