Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

[Stephen Kellat]

On Mar 7, 2017, at 10:08 PM, Tzeng, Nigel H.  wrote:
> 
> You know the more I think about this, the disclaimer of patent rights in CC0 
> is probably best for GOSS because it avoids the attempt for a one size fit 
> all patent grant language among different agencies with different policies 
> and the complexity under which patent rights are awarded to whom under the 
> Bayh-Dole Act and Executive Order 10096.
> 
> Employees of federal agencies, especially research oriented ones, have some 
> financial interest and rights under 10096.
> 
> Likewise non-profits and small businesses under Bayh-Dole.
> 
> IMHO patent grant language in FOSS licenses provide a false sense of security.
> 
> I would rather the government open source as much as possible regardless of 
> patent rights as long as any known patents are disclosed. As seen in 
> Ximpleware v Versata the patents typically only cover a small portion of the 
> overall system (VTD-XML). While it is relevant from the perspective of being 
> able to use the system as built it is less relevant from a code reuse 
> perspective.
> 
> For large government systems significant software components could often be 
> reused without the specific portions covered under patent.
> 
> So just having a copyright license to the entire project would provide 
> significant value to the community. There is code I wrote 30 years ago I'd 
> love to get access to again even if I couldn't use the rest of the system.
> 
> 
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After a less than fabulous day at work for IRS dealing with my tiny corner of 
tax law as well as my accounts work, I am tempted after reading this.  Perhaps 
this could be used as well as the rest of this thread as pre-decisional input 
to open a tight Inquiry in the Federal Register.  That's the first step we can 
take to move into building a formal record for a body of law.  Alternatively 
getting something chartered under the Federal Advisory Committees Act might 
help move this forward.

I think the debate has dragged on a bit for more than a few months.  Moving to 
where desirable federal policy/policies are adopted is probably doable.  Could 
we narrow this down to 3 or fewer courses of action that might be explored by 
ARL counsel in an inquiry notice?  Even if list participants are the only 
people that respond to a notice in the Federal Register we're still building a 
useful record for later use such as Federal Acquisition Rules changes, for 
example.

Depending upon what shows up in the President's budget set to drop Monday, I 
either will have a lot of time on my hands coming up or an ICTAP certificate 
plus lots of time on my hands.  I want to see Federal OSS policy evolve.  We 
have laid the groundwork here but need to get it in the official record soon.

Stephen Michael Kellat 
GS-0962-07/1
These views are solely my own and not those of the US Government.  Rank, 
position, grade, and bureau are cited for identification purposes only.



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Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

[Tzeng, Nigel H.]

You know the more I think about this, the disclaimer of patent rights in CC0 is 
probably best for GOSS because it avoids the attempt for a one size fit all 
patent grant language among different agencies with different policies and the 
complexity under which patent rights are awarded to whom under the Bayh-Dole 
Act and Executive Order 10096.

Employees of federal agencies, especially research oriented ones, have some 
financial interest and rights under 10096.

Likewise non-profits and small businesses under Bayh-Dole.

IMHO patent grant language in FOSS licenses provide a false sense of security.

I would rather the government open source as much as possible regardless of 
patent rights as long as any known patents are disclosed. As seen in Ximpleware 
v Versata the patents typically only cover a small portion of the overall 
system (VTD-XML). While it is relevant from the perspective of being able to 
use the system as built it is less relevant from a code reuse perspective.

For large government systems significant software components could often be 
reused without the specific portions covered under patent.

So just having a copyright license to the entire project would provide 
significant value to the community. There is code I wrote 30 years ago I'd love 
to get access to again even if I couldn't use the rest of the system.


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Re: [License-discuss] patent rights and the OSD

[Ben Tilly]

I used weasel words, "..does impact distribution of software.."  By which I
meant that the act of distributing software CAN trigger patent law.  Not
that it always does.

Arguments can be made both ways on this.  Giving away software for free can
be argued to fall under, "Whoever actively induces infringement of a patent
shall be liable as an infringer."  But, as you said, free speech is
involved here.

That said, downloading compiled code in the US from a Canadian ftp site is
an activity that OSD #1 says should be allowed, but my understanding of US
patent law clearly says that this is forbidden.  And that's enough for
patent law to cross into territory that the OSD cares about.

(I'm still not a lawyer, etc.)

On Tue, Mar 7, 2017 at 5:52 PM, Lawrence Rosen  wrote:

> Ben Tilly wrote:
>
> > According to the statute as shown at https://www.law.cornell.
> edu/uscode/text/35/271, patent law covers selling and importing.  Which
> by my reading means that it does impact distribution of software, even if
> you do not run it.
>
>
>
> I don't read the law quite that way. Certainly selling or importing a
> product that contains patented software for its intended use would be
> infringing. But merely importing or distributing source code that is
> licensed under CC0 does not infringe. I'd call it free speech.
>
>
>
> Other opinions?
>
>
>
> /Larry
>
>
>
>
>
> *From:* Ben Tilly [mailto:bti...@gmail.com]
> *Sent:* Tuesday, March 7, 2017 4:27 PM
> *To:* Lawrence Rosen ; License Discuss <
> license-discuss@opensource.org>
> *Subject:* Re: [License-discuss] patent rights and the OSD
>
>
>
> *[] *
>
> IANALTINLA and all that.
>
>
>
> On Tue, Mar 7, 2017 at 3:57 PM, Lawrence Rosen 
> wrote:
>
> Christopher Sean Morrison wrote:
>
> > Software patents are terrible in part because they pertain to the
> source code itself, thus affecting the distribution terms on that code.
>
>
>
> Patents don't pertain to source code or to code distribution, at least not
> in legal terms of direct patent infringement. Patent rights pertain to the
> "use" of the software, not its written description.
>
>
>
> Patents are already described as publicly as open source code (see
> USPTO.gov), but one is under patent law and the other under copyright law.
> This openness of publication under patent law is on purpose, although with
> the flood of software patents and their obscure language, this publication
> openness is not very helpful to creators of copyrighted software. But this
> doesn't affect source code or its distribution, certainly not literally in
> the many jurisdictions where the patents are ineffective, nor in the U.S.
>
>
>
> Where this discussion can go awry is when we interpret the OSD too broadly
> with respect to patents. The OSD can be clarified or amended, but at its
> birth nobody fully understood software patents. After reading the CC letter
> to the White House (https://github.com/WhiteHouse/source-code-policy/
> issues/149), I can agree it is a complicated problem.
>
>
>
> /Larry
>
>
>
>
>
> *From:* License-discuss [mailto:license-discuss-boun...@opensource.org] *On
> Behalf Of *Christopher Sean Morrison
> *Sent:* Tuesday, March 7, 2017 3:10 PM
> *To:* license-discuss@opensource.org
> *Cc:* License Discuss 
> *Subject:* Re: [License-discuss] patent rights and the OSD
>
>
>
>
>
>
> On Mar 07, 2017, at 04:45 PM, Ben Tilly  wrote:
>
> When we talk about whether a software license is OSD compliant, we are
> only addressing the question of whether this license restricts software
> under copyright law in a way that violates the OSD.
>
>
>
> I hear you, but I don't see where the OSD says that.  It does not mention
> copyright law.  The OSD annotated or otherwise doesn't even mention the
> word 'copy'.  It (specifically?) says "the distribution terms".
>
>
>
> While I certainly can understand the perspective that there are other
> laws, regulations, and factors, not all of them affect distribution terms
> of the software -- they are restrictions on me, my assets, my situation,
> not the software.  Software patents are terrible in part because they
> pertain to the source code itself, thus affecting the distribution terms on
> that code.
>
>
>
> In a way, it's convenient that the OSD does not specifically call out
> copyright and speaks generically.  It's a testament of forethought (or
> luck) of the original authors.
>
>
>
> Cheers!
>
> Sean
>
>
>
>
>
>
> ___
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>
>
>
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[License-discuss] code.mil update

[Christopher Sean Morrison]

On a rather unrelated note (apologies for the deluge of e-mails today!), the 
folks behind code.mil have responded to public feedback and are proposing 
significant changes to their approach.


Instead of wrapping an OSI license as before, they now propose to directly 
utilize an existing copyright-based open source license.  That is, they may 
actually attempt to test the theory postulated by Richard Fontana et al., 
namely that horrible things might not actually happen if the USG slaps a 
copyright-based license on their works.  Instead of wrapping the license, they 
use it straight up with an INTENT.md file to explain that what's public domain 
obviously remains as such, and what's not falls under the license.  Details 
here:



https://github.com/deptofdefense/code.mil#welcome-to-codemil---an-experiment-in-open-source-at-the-department-of-defense

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Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 07:15 PM, "Tzeng, Nigel H."  wrote:


I dislike this approach. If CC0 passes OSD then it should get approved as is. 
If a patent grant is now a requirement to pass the OSD it should be added as a 
criteria and a license passes or fails based on the license text itself.


There already is criteria -- the problem, as you noted, is that there may be a 
third party with patent rights on a method used by the code, thus making any 
recipients of the code unable to exercise (some) assurances expressed in the 
OSD.



Is a library that implements, e.g., the GIF patent open source if I can't sell 
or export that code?  I can certainly see reasonable arguments both ways.



What sparked this discussion is a license that explicitly says "you don't have a 
patent grant from me or, effectively, anyone that has ever contributed to this 
code."  I don't know if it's a small subset as suggested as I have only ever 
(knowingly) encountered patented code from the original authors (CAD domain), but if one 
of them put a license on their code and said contact me for a patent license, that feels 
entirely in violation of the current OSD as written because of what it knowingly 
prohibits.



If Creative Commons feels strongly that CC0 should only be used with some sort 
of patent grant the easiest course is simply to remove the disclaimer of patent 
grant and call it CC0-software or something. Then it would have the same 
implicit grant as BSD and there is no issue with approval and no new composite 
license structure that will just confuse people even more.


This certainly sounds like an interesting approach that I can raise with them, 
but obviously lacks the explicit rigor favored by the Gov't lawyers.  
Otherwise, a different license like the Free Public License would be a 
competing option (at least in terms of non-proliferation), no?


The niche area seems to be specifically public-domain without explicitly 
disavowing patents and without knowingly permitting patentee contributors to 
create a situation.



Cheers!

Sean


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Re: [License-discuss] patent rights and the OSD

[Lawrence Rosen]

Ben Tilly wrote:

> According to the statute as shown at 
> https://www.law.cornell.edu/uscode/text/35/271, patent law covers selling and 
> importing.  Which by my reading means that it does impact distribution of 
> software, even if you do not run it.

 

I don't read the law quite that way. Certainly selling or importing a product 
that contains patented software for its intended use would be infringing. But 
merely importing or distributing source code that is licensed under CC0 does 
not infringe. I'd call it free speech.

 

Other opinions?

 

/Larry

 

 

From: Ben Tilly [mailto:bti...@gmail.com] 
Sent: Tuesday, March 7, 2017 4:27 PM
To: Lawrence Rosen ; License Discuss 

Subject: Re: [License-discuss] patent rights and the OSD

 

[]  

IANALTINLA and all that.

 

On Tue, Mar 7, 2017 at 3:57 PM, Lawrence Rosen  > wrote:

Christopher Sean Morrison wrote:

> Software patents are terrible in part because they pertain to the source code 
> itself, thus affecting the distribution terms on that code.

 

Patents don't pertain to source code or to code distribution, at least not in 
legal terms of direct patent infringement. Patent rights pertain to the "use" 
of the software, not its written description.

 

Patents are already described as publicly as open source code (see USPTO.gov), 
but one is under patent law and the other under copyright law. This openness of 
publication under patent law is on purpose, although with the flood of software 
patents and their obscure language, this publication openness is not very 
helpful to creators of copyrighted software. But this doesn't affect source 
code or its distribution, certainly not literally in the many jurisdictions 
where the patents are ineffective, nor in the U.S. 

 

Where this discussion can go awry is when we interpret the OSD too broadly with 
respect to patents. The OSD can be clarified or amended, but at its birth 
nobody fully understood software patents. After reading the CC letter to the 
White House (https://github.com/WhiteHouse/source-code-policy/issues/149), I 
can agree it is a complicated problem. 

 

/Larry

 

 

From: License-discuss [mailto:license-discuss-boun...@opensource.org 
 ] On Behalf Of Christopher Sean 
Morrison
Sent: Tuesday, March 7, 2017 3:10 PM
To: license-discuss@opensource.org  
Cc: License Discuss 
Subject: Re: [License-discuss] patent rights and the OSD

 

 


On Mar 07, 2017, at 04:45 PM, Ben Tilly  > wrote:

When we talk about whether a software license is OSD compliant, we are only 
addressing the question of whether this license restricts software under 
copyright law in a way that violates the OSD.

 

I hear you, but I don't see where the OSD says that.  It does not mention 
copyright law.  The OSD annotated or otherwise doesn't even mention the word 
'copy'.  It (specifically?) says "the distribution terms". 

 

While I certainly can understand the perspective that there are other laws, 
regulations, and factors, not all of them affect distribution terms of the 
software -- they are restrictions on me, my assets, my situation, not the 
software.  Software patents are terrible in part because they pertain to the 
source code itself, thus affecting the distribution terms on that code.

 

In a way, it's convenient that the OSD does not specifically call out copyright 
and speaks generically.  It's a testament of forethought (or luck) of the 
original authors.

 

Cheers!

Sean

 

 


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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 06:58 PM, Lawrence Rosen  wrote:



Christopher Sean Morrison wrote:


Software patents are terrible in part because they pertain to the source code 
itself, thus affecting the distribution terms on that code.


 

Patents don't pertain to source code or to code distribution, at least not in legal terms 
of direct patent infringement. Patent rights pertain to the "use" of the 
software, not its written description.



I didn't meant to imply that the code itself infringes on the patent, but rather that the 
"it pertains" in the practical sense that one can test whether OSD #1 or #7 are 
permitted by looking at the code.


Is it not true that if the code satisfies a patent's claims, any recipient 
could not engage in free redistribution without a patent grant?  That is what 
makes this an OSI matter in my view.



Cheers!
Sean

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Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

[Tzeng, Nigel H.]

I dislike this approach. If CC0 passes OSD then it should get approved as is. 
If a patent grant is now a requirement to pass the OSD it should be added as a 
criteria and a license passes or fails based on the license text itself.

Not CC0 and some patent agreement that has not been written.

If Creative Commons feels strongly that CC0 should only be used with some sort 
of patent grant the easiest course is simply to remove the disclaimer of patent 
grant and call it CC0-software or something. Then it would have the same 
implicit grant as BSD and there is no issue with approval and no new composite 
license structure that will just confuse people even more.
From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
>
Date: Tuesday, Mar 07, 2017, 4:56 PM
To: license-discuss@opensource.org 
>
Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

That is true, but OSI can make it clear that when software is licensed, then 
the licensor is expected to license any necessary patents that the licensor 
owns along with licensing the copyright.  If there are patents that the 
licensor is unaware of, then the licensor can't do anything about that either.

And like you, I'm not a lawyer, and this is not legal advice.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Ben Tilly
> Sent: Tuesday, March 07, 2017 4:45 PM
> To: License Discuss 
> Subject: [Non-DoD Source] Re: [License-discuss] patent rights and the OSD
>
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
>
>
> 
>
>
>
> My legal rights to software on the computer in front of me may be restricted 
> by many things.  A short and incomplete list includes
> copyright law, patents, contracts, who owns the computer and my employment 
> status.  Any and all of these can impact whether I actually
> enjoy the freedoms that the OSD describes.  I may be unaware of or 
> misinformed about any or all these potential encumbrances.
>
> When we talk about whether a software license is OSD compliant, we are only 
> addressing the question of whether this license restricts
> software under copyright law in a way that violates the OSD.  In principle it 
> is generally impossible to decide whether I *actually* have the
> rights described by the OSD to the software in front of me.
>
> (I am not a lawyer and this is not legal advice.)
>
> On Mon, Mar 6, 2017 at 3:41 PM, Christopher Sean Morrison  Caution-mailto:brl...@mac.com > > wrote:
>
>
>
>In light of the recent CC0 discussion, I’m refreshing my mind on what 
> rights are provided under patent law, each of the OSD
> criteria, and any connections between them.
>
>From my reading, a patent gives the holder the right to exclude others 
> from (a) making, (b) using, (c) selling, or (d)
> importing/exporting their invention.  The OSD clauses refer to “the 
> distribution terms” in rather license- and copyright-agnostic terms, so
> here’s my basic layman analysis:
>
>1) Exclusion (a) seems not problematic for the OSD as it precludes 
> others outside of licensing.
>2) Certainly a problem in the broad sense, but exclusion (b) seems not 
> problematic with the OSD.
>3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and 
> possibly #7 (Distribution of license).
>4) Exclusion (d) similarly fails #1 and #7.
>
>So what?  In terms of OSD compliance, there appears to be several 
> issues if a patent exists and one does not grant/hold a royalty-
> free patent license.  If I have a software patent and license that software 
> under CC0, for example, without any other distribution terms in
> place, it’s my reading that this would technically be distribution terms that 
> violate OSD #1 and #7.
>
>This creates an interesting situation where “the distribution terms” 
> of some software will depend on whether the distributor
> holds a patent, not necessarily on the language of their license.  There are, 
> of course, ample examples of licenses that convey conforming
> patent rights, both implicit and explicitly.
>
>Does anyone disagree that holding a patent and not granting a patent 
> license violates the OSD, perhaps as an out-of-band
> perspective?  Should the OSD only be measured against a copyright standard, 
> as originally drafted?  Does OSI need to clarify “all bets are
> off” if there’ s a patent or consider them as part of the distribution terms 
> equally?  What are other people’s thoughts on this?
>
>Cheers!
>Sean
>
>

Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Tzeng, Nigel H.]

Oooops :). Ignore the empty email.

Why does who holds the patent matter in this case? If a patent exists and you 
don't have a patent grant actually precludes distribution of code it would 
apply regardless of who owns it right?

If the existence of a patent doesn't preclude distribution then it doesn't 
violate the OSD.

So a patent grant by the contributor only protects in a very small fraction of 
cases. It doesn't even protect against bad actors intending to submarine 
patents because they could simply sell those patents to a separate legal entity 
that acts as a patent troll before they do a FOSS release.
From: Christopher Sean Morrison >
Date: Tuesday, Mar 07, 2017, 5:57 PM
To: license-discuss@opensource.org 
>
Subject: Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

By my reading, those "distribution terms" violate OSD #1 and #7.  This is 
potentially a problem for any license (e.g., all the permissives) that doesn't 
specifically speak to patent rights.  If the distribution terms specifically 
deny a patent grant, it will no longer be possible to freely redistribute the 
source code (that is, IF any contributor holds patent rights whose claims are 
implemented by the source code...).

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Re: [License-discuss] patent rights and the OSD

[Lawrence Rosen]

Christopher Sean Morrison wrote:

> Software patents are terrible in part because they pertain to the source
code itself, thus affecting the distribution terms on that code.

 

Patents don't pertain to source code or to code distribution, at least not
in legal terms of direct patent infringement. Patent rights pertain to the
"use" of the software, not its written description.

 

Patents are already described as publicly as open source code (see
USPTO.gov), but one is under patent law and the other under copyright law.
This openness of publication under patent law is on purpose, although with
the flood of software patents and their obscure language, this publication
openness is not very helpful to creators of copyrighted software. But this
doesn't affect source code or its distribution, certainly not literally in
the many jurisdictions where the patents are ineffective, nor in the U.S. 

 

Where this discussion can go awry is when we interpret the OSD too broadly
with respect to patents. The OSD can be clarified or amended, but at its
birth nobody fully understood software patents. After reading the CC letter
to the White House
(https://github.com/WhiteHouse/source-code-policy/issues/149), I can agree
it is a complicated problem. 

 

/Larry

 

 

From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
Behalf Of Christopher Sean Morrison
Sent: Tuesday, March 7, 2017 3:10 PM
To: license-discuss@opensource.org
Cc: License Discuss 
Subject: Re: [License-discuss] patent rights and the OSD

 

 


On Mar 07, 2017, at 04:45 PM, Ben Tilly  > wrote:

When we talk about whether a software license is OSD compliant, we are only
addressing the question of whether this license restricts software under
copyright law in a way that violates the OSD.

 

I hear you, but I don't see where the OSD says that.  It does not mention
copyright law.  The OSD annotated or otherwise doesn't even mention the word
'copy'.  It (specifically?) says "the distribution terms". 

 

While I certainly can understand the perspective that there are other laws,
regulations, and factors, not all of them affect distribution terms of the
software -- they are restrictions on me, my assets, my situation, not the
software.  Software patents are terrible in part because they pertain to the
source code itself, thus affecting the distribution terms on that code.

 

In a way, it's convenient that the OSD does not specifically call out
copyright and speaks generically.  It's a testament of forethought (or luck)
of the original authors.

 

Cheers!

Sean

 

 

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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Tzeng, Nigel H.]

From: Christopher Sean Morrison >
Date: Tuesday, Mar 07, 2017, 5:57 PM
To: license-discuss@opensource.org 
>
Subject: Re: [License-discuss] [Non-DoD Source] patent rights and the OSD



On Mar 07, 2017, at 04:09 PM, Richard Fontana  wrote:

By my reading, those "distribution terms" violate OSD #1 and #7.  This is 
potentially a problem for any license (e.g., all the permissives) that doesn't 
specifically speak to patent rights.  If the distribution terms specifically 
deny a patent grant, it will no longer be possible to freely redistribute the 
source code (that is, IF any contributor holds patent rights whose claims are 
implemented by the source code...).
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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 04:45 PM, Ben Tilly  wrote:


When we talk about whether a software license is OSD compliant, we are only 
addressing the question of whether this license restricts software under 
copyright law in a way that violates the OSD.


I hear you, but I don't see where the OSD says that.  It does not mention copyright law.  
The OSD annotated or otherwise doesn't even mention the word 'copy'.  It (specifically?) 
says "the distribution terms".



While I certainly can understand the perspective that there are other laws, 
regulations, and factors, not all of them affect distribution terms of the 
software -- they are restrictions on me, my assets, my situation, not the 
software.  Software patents are terrible in part because they pertain to the 
source code itself, thus affecting the distribution terms on that code.



In a way, it's convenient that the OSD does not specifically call out copyright 
and speaks generically.  It's a testament of forethought (or luck) of the 
original authors.



Cheers!

Sean




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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 04:09 PM, Richard Fontana  wrote:


On Tue, Mar 07, 2017 at 03:55:37PM +, Christopher Sean Morrison wrote:


Of particular significance, it calls into question whether there are
any OSI-approved licenses that specifically exclude patent rights in
the current portfolio or whether CC0 would be the first of its
kind.  If there ARE, then CC0 would not create a precedent situation
any worse than currently exists and approval could move forward.

I'm not aware of any.


I guess that's a good thing...  (oof! more work then)

 
There is the 'Clear BSD' license, which the FSF considers not only a
free software license but also GPL-compatible:

https://directory.fsf.org/wiki/License:ClearBSD
https://www.gnu.org/licenses/license-list.en.html#clearbsd

But I am not aware of this license ever having been submitted for OSI
approval.


It's okay if OS != FS.  They're allowed to get it wrong from time to time too. 
;)



I've also seen one or two companies engage in the practice of
licensing code under GPLv2 accompanied by a statement that no patent
licenses are granted.


By my reading, those "distribution terms" violate OSD #1 and #7.  This is 
potentially a problem for any license (e.g., all the permissives) that doesn't 
specifically speak to patent rights.  If the distribution terms specifically deny a 
patent grant, it will no longer be possible to freely redistribute the source code (that 
is, IF any contributor holds patent rights whose claims are implemented by the source 
code...).

 
So in other words, "this license is Open Source to the extent that,
when used, it is accompanied by [a separate appropriate patent license
grant]", for example?


Yes!  It would only be required on any license that explicitly disclaims patent rights.  
However, it'd also be a reasonable statement for any license that grants implicitly as 
well.  For those, the converse might be, "this license is NOT Open Source if it is 
accompanied by an explicit denial of patent rights."  Of course, explicit denial 
arguably makes the distribution terms of any license fail the OSD.



Cheers!

Sean


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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Lawrence Rosen]

Richard Fontana suggested:

> So in other words, "this license is Open Source to the extent that, when 
> used, it is accompanied by [a separate appropriate patent license grant]", 
> for example?

 

Richard, that sounds like a great compromise that the government agencies might 
be able to live with. :-)  If I understand correctly, there is already an 
existing government policy that patent rights are granted to all users of the 
software, albeit separately by policy rather than by license.

 

And if I understand correctly, that is already the implied promise in Europe?

 

/Larry

 

-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Richard Fontana
Sent: Tuesday, March 7, 2017 1:09 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

 

On Tue, Mar 07, 2017 at 03:55:37PM +, Christopher Sean Morrison wrote:

 

> Of particular significance, it calls into question whether there are 

> any OSI-approved licenses that specifically exclude patent rights in 

> the current portfolio or whether CC0 would be the first of its kind.  

> If there ARE, then CC0 would not create a precedent situation any 

> worse than currently exists and approval could move forward.

 

I'm not aware of any.

 

There is the 'Clear BSD' license, which the FSF considers not only a free 
software license but also GPL-compatible:

 

  
https://directory.fsf.org/wiki/License:ClearBSD

  
https://www.gnu.org/licenses/license-list.en.html#clearbsd

 

But I am not aware of this license ever having been submitted for OSI approval.

 

I've also seen one or two companies engage in the practice of licensing code 
under GPLv2 accompanied by a statement that no patent licenses are granted.

 

> If there AREN'T, that begs under non-proliferation for any new licenses that 
> explicitly disclaim patent rights to be found OSD-inadequate, particularly 
> w.r.t. clauses #1 and #7.  Moreover, any license approval for a new license 
> containing a patent disclaimer (e.g., CC0) would necessarily require 
> modification or accompaniment by a required patent grant mechanism (such as 
> ARL's approach) in order to satisfy the OSD.

 

So in other words, "this license is Open Source to the extent that, when used, 
it is accompanied by [a separate appropriate patent license grant]", for 
example?

 

Richard

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Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

That is true, but OSI can make it clear that when software is licensed, then 
the licensor is expected to license any necessary patents that the licensor 
owns along with licensing the copyright.  If there are patents that the 
licensor is unaware of, then the licensor can't do anything about that either.

And like you, I'm not a lawyer, and this is not legal advice.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Ben Tilly
> Sent: Tuesday, March 07, 2017 4:45 PM
> To: License Discuss 
> Subject: [Non-DoD Source] Re: [License-discuss] patent rights and the OSD
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> My legal rights to software on the computer in front of me may be restricted 
> by many things.  A short and incomplete list includes
> copyright law, patents, contracts, who owns the computer and my employment 
> status.  Any and all of these can impact whether I actually
> enjoy the freedoms that the OSD describes.  I may be unaware of or 
> misinformed about any or all these potential encumbrances.
> 
> When we talk about whether a software license is OSD compliant, we are only 
> addressing the question of whether this license restricts
> software under copyright law in a way that violates the OSD.  In principle it 
> is generally impossible to decide whether I *actually* have the
> rights described by the OSD to the software in front of me.
> 
> (I am not a lawyer and this is not legal advice.)
> 
> On Mon, Mar 6, 2017 at 3:41 PM, Christopher Sean Morrison  Caution-mailto:brl...@mac.com > > wrote:
> 
> 
> 
>   In light of the recent CC0 discussion, I’m refreshing my mind on what 
> rights are provided under patent law, each of the OSD
> criteria, and any connections between them.
> 
>   From my reading, a patent gives the holder the right to exclude others 
> from (a) making, (b) using, (c) selling, or (d)
> importing/exporting their invention.  The OSD clauses refer to “the 
> distribution terms” in rather license- and copyright-agnostic terms, so
> here’s my basic layman analysis:
> 
>   1) Exclusion (a) seems not problematic for the OSD as it precludes 
> others outside of licensing.
>   2) Certainly a problem in the broad sense, but exclusion (b) seems not 
> problematic with the OSD.
>   3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and 
> possibly #7 (Distribution of license).
>   4) Exclusion (d) similarly fails #1 and #7.
> 
>   So what?  In terms of OSD compliance, there appears to be several 
> issues if a patent exists and one does not grant/hold a royalty-
> free patent license.  If I have a software patent and license that software 
> under CC0, for example, without any other distribution terms in
> place, it’s my reading that this would technically be distribution terms that 
> violate OSD #1 and #7.
> 
>   This creates an interesting situation where “the distribution terms” of 
> some software will depend on whether the distributor
> holds a patent, not necessarily on the language of their license.  There are, 
> of course, ample examples of licenses that convey conforming
> patent rights, both implicit and explicitly.
> 
>   Does anyone disagree that holding a patent and not granting a patent 
> license violates the OSD, perhaps as an out-of-band
> perspective?  Should the OSD only be measured against a copyright standard, 
> as originally drafted?  Does OSI need to clarify “all bets are
> off” if there’ s a patent or consider them as part of the distribution terms 
> equally?  What are other people’s thoughts on this?
> 
>   Cheers!
>   Sean
> 
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> 



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Re: [License-discuss] patent rights and the OSD

[Ben Tilly]

My legal rights to software on the computer in front of me may be
restricted by many things.  A short and incomplete list includes copyright
law, patents, contracts, who owns the computer and my employment status.
Any and all of these can impact whether I actually enjoy the freedoms that
the OSD describes.  I may be unaware of or misinformed about any or all
these potential encumbrances.

When we talk about whether a software license is OSD compliant, we are only
addressing the question of whether this license restricts software under
copyright law in a way that violates the OSD.  In principle it is generally
impossible to decide whether I *actually* have the rights described by the
OSD to the software in front of me.

(I am not a lawyer and this is not legal advice.)

On Mon, Mar 6, 2017 at 3:41 PM, Christopher Sean Morrison 
wrote:

>
> In light of the recent CC0 discussion, I’m refreshing my mind on what
> rights are provided under patent law, each of the OSD criteria, and any
> connections between them.
>
> From my reading, a patent gives the holder the right to exclude others
> from (a) making, (b) using, (c) selling, or (d) importing/exporting their
> invention.  The OSD clauses refer to “the distribution terms” in rather
> license- and copyright-agnostic terms, so here’s my basic layman analysis:
>
> 1) Exclusion (a) seems not problematic for the OSD as it precludes others
> outside of licensing.
> 2) Certainly a problem in the broad sense, but exclusion (b) seems not
> problematic with the OSD.
> 3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and
> possibly #7 (Distribution of license).
> 4) Exclusion (d) similarly fails #1 and #7.
>
> So what?  In terms of OSD compliance, there appears to be several issues
> if a patent exists and one does not grant/hold a royalty-free patent
> license.  If I have a software patent and license that software under CC0,
> for example, without any other distribution terms in place, it’s my reading
> that this would technically be distribution terms that violate OSD #1 and
> #7.
>
> This creates an interesting situation where “the distribution terms” of
> some software will depend on whether the distributor holds a patent, not
> necessarily on the language of their license.  There are, of course, ample
> examples of licenses that convey conforming patent rights, both implicit
> and explicitly.
>
> Does anyone disagree that holding a patent and not granting a patent
> license violates the OSD, perhaps as an out-of-band perspective?  Should
> the OSD only be measured against a copyright standard, as originally
> drafted?  Does OSI need to clarify “all bets are off” if there’ s a patent
> or consider them as part of the distribution terms equally?  What are other
> people’s thoughts on this?
>
> Cheers!
> Sean
>
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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Richard Fontana]

On Tue, Mar 07, 2017 at 03:55:37PM +, Christopher Sean Morrison wrote:

> Of particular significance, it calls into question whether there are
> any OSI-approved licenses that specifically exclude patent rights in
> the current portfolio or whether CC0 would be the first of its
> kind.  If there ARE, then CC0 would not create a precedent situation
> any worse than currently exists and approval could move forward.

I'm not aware of any.

There is the 'Clear BSD' license, which the FSF considers not only a
free software license but also GPL-compatible:

https://directory.fsf.org/wiki/License:ClearBSD
https://www.gnu.org/licenses/license-list.en.html#clearbsd

But I am not aware of this license ever having been submitted for OSI
approval.

I've also seen one or two companies engage in the practice of
licensing code under GPLv2 accompanied by a statement that no patent
licenses are granted.

> If there AREN'T, that begs under non-proliferation for any new licenses that 
> explicitly disclaim patent rights to be found OSD-inadequate, particularly 
> w.r.t. clauses #1 and #7.  Moreover, any license approval for a new license 
> containing a patent disclaimer (e.g., CC0) would necessarily require 
> modification or accompaniment by a required patent grant mechanism (such as 
> ARL's approach) in order to satisfy the OSD.

So in other words, "this license is Open Source to the extent that,
when used, it is accompanied by [a separate appropriate patent license
grant]", for example?

Richard
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Re: [License-discuss] patent rights and the OSD

[David Woolley]

On 07/03/17 13:30, Christopher Sean Morrison wrote:

It left me blinking too.  Which OSD clause requires the distribution terms to 
permit use?


I believe that position here is that OSD only covers copyright licensing 
and that US copyright law gives permission to use software (for 
copyright purposes) to anyone with a copy.  UK law does require an 
explicit use permission.


Because it is US-centric, there was no conception that you might need to 
give an explicit permission to use.

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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Christopher Sean Morrison
> Sent: Tuesday, March 07, 2017 10:56 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] patent rights and the OSD
>
>
> On Mar 07, 2017, at 09:07 AM, "Karan, Cem F CIV USARMY RDECOM ARL (US)" 
>  wrote:
>
>
>
>   I personally think that software that is distributed without a patent 
> license or a waiver of patent claims is not Open Source (this is
> my opinion, and not a Government position).
>
>
>
> It certainly fails a smell test in modern times.  However, this is not 
> something addressed by the OSI board, called out by the OSD, and has
> only been ad hoc discussed by folks here.
>
>
>
> Of particular significance, it calls into question whether there are any 
> OSI-approved licenses that specifically exclude patent rights in the
> current portfolio or whether CC0 would be the first of its kind.  If there 
> ARE, then CC0 would not create a precedent situation any worse
> than currently exists and approval could move forward.
>
>
>
> If there AREN'T, that begs under non-proliferation for any new licenses that 
> explicitly disclaim patent rights to be found OSD-inadequate,
> particularly w.r.t. clauses #1 and #7.  Moreover, any license approval for a 
> new license containing a patent disclaimer (e.g., CC0) would
> necessarily require modification or accompaniment by a required patent grant 
> mechanism (such as ARL's approach) in order to satisfy the
> OSD.
>
>
>
> Of course, the OSI should still weigh in on this.  Either OSD is applied 
> as-is and patents are part of "the distribution terms", they are
> considered separate for historical reasons, or the OSD requires 
> modification.
>
>
>
>
>   It prevents people from freely modifying the code.
>
>
>
> Actually holding a patent does not necessarily prevent modification of code. 
> Of course, there's doesn't seem to be much value in
> modifying the code if one doesn't have the right to use, sell, or export it 
> but it's technically not prohibited.  Even more importantly, such
> modification could very well make the code no longer satisfy patent claims, 
> thus it becoming usable, sellable, etc. again.

You're right of course.  My bad.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 09:07 AM, "Karan, Cem F CIV USARMY RDECOM ARL (US)"  wrote:I personally think that software that is distributed without a patent license or a waiver of patent claims is not Open Source (this is my opinion, and not a Government position).It certainly fails a smell test in modern times.  However, this is not something addressed by the OSI board, called out by the OSD, and has only been ad hoc discussed by folks here.Of particular significance, it calls into question whether there are any OSI-approved licenses that specifically exclude patent rights in the current portfolio or whether CC0 would be the first of its kind.  If there ARE, then CC0 would not create a precedent situation any worse than currently exists and approval could move forward.If there AREN'T, that begs under non-proliferation for any new licenses that explicitly disclaim patent rights to be found OSD-inadequate, particularly w.r.t. clauses #1 and #7.  Moreover, any license approval for a new license containing a patent disclaimer (e.g., CC0) would necessarily require modification or accompaniment by a required patent grant mechanism (such as ARL's approach) in order to satisfy the OSD.Of course, the OSI should still weigh in on this.  Either OSD is applied as-is and patents are part of "the distribution terms", they are considered separate for historical reasons, or the OSD requires modification.It prevents people from freely modifying the code.Actually holding a patent does not necessarily prevent modification of code.  Of course, there's doesn't seem to be much value in  modifying the code if one doesn't have the right to use, sell, or export it but it's technically not prohibited.  Even more importantly, such modification could very well make the code no longer satisfy patent claims, thus it becoming usable, sellable, etc. again.Cheers!Sean

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Re: [License-discuss] [Non-DoD Source] patent rights and the OSD

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

I personally think that software that is distributed without a patent license 
or a waiver of patent claims is not Open Source (this is my opinion, and not a 
Government position).  It prevents people from freely modifying the code.  That 
said, I don't have a problem with someone holding a software patent; in some 
cases, it may actually be beneficial because it prevents someone else from 
holding the same patent, so it may actually clarify what is being licensed[1].

Thanks,
Cem Karan

[1] I'm not a lawyer, this is not legal advice, find someone that really knows 
the law to make sure this is correct.

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Christopher Sean Morrison
> Sent: Monday, March 06, 2017 6:41 PM
> To: License Discussion Mailing List 
> Subject: [Non-DoD Source] [License-discuss] patent rights and the OSD
> 
> All active links contained in this email were disabled.  Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> 
> In light of the recent CC0 discussion, I’m refreshing my mind on what rights 
> are provided under patent law, each of the OSD criteria, and
> any connections between them.
> 
> From my reading, a patent gives the holder the right to exclude others from 
> (a) making, (b) using, (c) selling, or (d) importing/exporting
> their invention.  The OSD clauses refer to “the distribution terms” in rather 
> license- and copyright-agnostic terms, so here’s my basic
> layman analysis:
> 
> 1) Exclusion (a) seems not problematic for the OSD as it precludes others 
> outside of licensing.
> 2) Certainly a problem in the broad sense, but exclusion (b) seems not 
> problematic with the OSD.
> 3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and 
> possibly #7 (Distribution of license).
> 4) Exclusion (d) similarly fails #1 and #7.
> 
> So what?  In terms of OSD compliance, there appears to be several issues if a 
> patent exists and one does not grant/hold a royalty-free
> patent license.  If I have a software patent and license that software under 
> CC0, for example, without any other distribution terms in
> place, it’s my reading that this would technically be distribution terms that 
> violate OSD #1 and #7.
> 
> This creates an interesting situation where “the distribution terms” of some 
> software will depend on whether the distributor holds a
> patent, not necessarily on the language of their license.  There are, of 
> course, ample examples of licenses that convey conforming patent
> rights, both implicit and explicitly.
> 
> Does anyone disagree that holding a patent and not granting a patent license 
> violates the OSD, perhaps as an out-of-band perspective?
> Should the OSD only be measured against a copyright standard, as originally 
> drafted?  Does OSI need to clarify “all bets are off” if there’ s
> a patent or consider them as part of the distribution terms equally?  What 
> are other people’s thoughts on this?
> 
> Cheers!
> Sean
> 
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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

> On Mar 7, 2017, at 4:08 AM, Gervase Markham  wrote:
> 
> On 06/03/17 23:41, Christopher Sean Morrison wrote:
>> From my reading, a patent gives the holder the right to exclude
>> others from (a) making, (b) using, (c) selling, or (d)
>> importing/exporting their invention.  The OSD clauses refer to “the
>> distribution terms” in rather license- and copyright-agnostic terms,
>> so here’s my basic layman analysis:
>> 
>> 1) Exclusion (a) seems not problematic for the OSD as it precludes
>> others outside of licensing. 2) Certainly a problem in the broad
>> sense, but exclusion (b) seems not problematic with the OSD.
> 
>  Are you saying that a prohibition on using the software is not
> an OSD problem?

It left me blinking too.  Which OSD clause requires the distribution terms to 
permit use?

In the generic sense, one might argue that not having usage rights restricts 
(everyone) “from making use of the program in a specific field of endeavor” per 
OSD #6.  However, that seems like a stretch since not having a patent grant 
prevents use indiscriminately in *all* fields of endeavor.  There’s similar 
indiscriminate prohibition in #5 too.

I’ll be happy to be corrected, but it seems to me as though the OSD criteria 
does not speak to using the software.   

Cheers!
Sean

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