I am starting to notice a growing number of people who claim that what makes software Open Source is what *copyright* license agreement it is licensed under. This is not in fact the case: a program qualifies as Open Source if the "distribution terms of open-source software must comply with the following criteria" as described in the Open Source Definition: http://www.opensource.org/docs/definition.php
In practical terms this means that any exclusive rights that exist on the work must be licensed according to this criteria. While all the licenses in the OSI approved license list deal with copyright issues, not all of them address other exclusive rights like patents at all. I suggest clarification in the definition on this issue, including possibly a reference to a document that describes the issue in more detail. PCT - Patents, Copyrights, and Trademarks (and other Sui Generis Protections) I don't think Trademarks or other Sui Generis Protections are an issue for Open Source at this time. Requiring that someone rename the project if they make a modification does not go against any of the criteria that I can see. I don't know how database protections are going to affect collections of programs (distribution CDs, etc), but I can't think of a problem that isn't dealt with by #9. If I am wrong, please correct me -- are there discussion papers on various Sui Generis Protections already? Copyright is dealt with extensively on the site already, and is the core of the documentation. Patents do not seem to be dealt with generally, only specifically within certain license agreements that mention all PCT issues in the single license agreement. A great example of a license that deals with the patent issue is http://www.opensource.org/licenses/osl.php at "2) Grant of Patent License". Not all OSI approved license agreements mention patents at all, leaving a marketing loophole where someone can claim that software is Open Source because it uses an OSI approved license, and yet is not open source because it uses a patent license which is not OSI approved. Unsuspecting Open Source developers and users could then offer support for this software only to find out after the fact that someone else claims ownership (via patents) over their work. My reading of the OSD suggests that only an RF (royalty free) patent license with no "Field of Use" restrictions would qualify. The RF issue is clear from #1, and this came out clearly in the discussions with the W3C. What I don't see clearly stated is how #3,#6,#7,#8 all add up to a requirement that there be no "field of use" restrictions, something that wasn't clarified well during the W3C patent policy debates. Licensing, including for derivative works, must be automatic (that any recipient of the software receive the same patent license) in my reading of the OSD #7. This is one issue that many people incorrectly believe is a GNU GPL issue rather than an issue with all Open Source compatible patent licenses. (Example: see the misinformation in http://zdnet.com.com/2100-1104_2-5125160.html ) Motivations: I have been trying to deal with this issue in the context of IBM and my work with Industry Canada on software patent issues <http://www.flora.ca/patent2003/>. We need to somehow encourage IBM to come clean on how they appear to be adopting Open Source via using Open Source qualifying copyright licenses while at the same time promoting "unlimited patentability" worldwide <http://swpat.ffii.org/players/ibm/> and not fully adopting Open Source patent licenses (such as the W3C and now IETF and OASIS problems). Here is an example "letter to the editor" I have sent in: IBM Leads in Patent (arms) Race http://www.digital-copyright.ca/discuss/2259 Note: There are all these Halloween documents discussing the OSI battle-of-words with Microsoft, but I wonder why there is no similar discussion with IBM? Microsoft may be fun to play with, but they are simply not the only organization that is committing actions that can harm the Open Source movement. I think IBM represents a considerably greater threat than Microsoft, and IBM may turn out to be easier to reach to turn them around. If we can turn IBM around we may be able to turn around the whole "information process patents" issue once and for all. --- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3