Jeremy Stanley <[email protected]> writes: > The popularity of the legal workarounds you enumerated also vary > somewhat by license, owing in great part to the fact that not all > free/libre open source software licenses these days are purely copyright > licenses: some also require patent grants, and for even longer we've had > some that mandated or restricted certain uses of associated trademarks > as well (thankfully not en vogue in recent years). So, depending on what > additional sorts of intellectual property a license might cover, the > project's legal counsel may push for stronger binding contracts to make > sure the intent is clear... especially since IP like patents and > trademarks tend to be jurisdiction-dependent and aren't covered by broad > international convention the way copyright has been.
This is a really good point. I did not think about patent licenses, but indeed those are a completely different problem with different tradeoffs. For example, I suspect one of the most common failure modes, legally, of the standard community assumption about free software licensing is when someone submits a patch on employer time without getting explicit permission from their employer to release the work as free software. Depending on local laws, work contracts, etc., that patch may be owned by their employer under work-for-hire laws and the person submitting it may have no legal right to agree to anything regarding it. For most patches with only copyright interest, this still isn't a big deal, since most employers are not going to care unless the work is quite substantial and often will not care even then. In most cases the benefit to the employer in getting their patch merged is much higher than any inherent value in the patch, so interests are still aligned. Organizations like the FSF try to handle this case explicitly in their legal agreements, but most typical free software projects can (not legal advice!) still ignore this and everything will usually be fine. But an employer who doesn't care about the incidental copyright on a patch often will still care A GREAT DEAL about patent licenses and will absolutely not agree that some random employee can grant use of corporate patents. This is one reason why it's common to see a corporate policy prohibiting employees from contributing to free software covered by licenses with patent grant clauses without explicit permission. If there are any actual patent concerns and the license includes patent grants, I personally would be very uncomfortable relying on social convention rather than requiring some sort of legal agreement and assurance that the submitter has a right to make that agreement. -- Russ Allbery ([email protected]) <https://www.eyrie.org/~eagle/>
