Response to comments on Intel's proposed BSD+Patent license

[Matthew C. Weigel]

On Wed, 31 Oct 2001, Stamnes, Michelle wrote:

> Finally, under the proposed license, you can use the software in
> Solaris or any other proprietary OS or in any other piece of software
> (in addition to the GPL based OS's).  You just don't have a patent
> license; so you are no worse off than with the BSD license.

I'm afraid the license is not entirely clear on this point:

       This license shall include  changes to the Software that are
       error corrections or other minor changes to the Software that do
       not add functionality or features when the Software is
       incorporated in any version of a operating system that has been
       distributed under the GNU General Public License 2.0 or later.

Does that mean that the license *only* includes such changes to the
software under *only* such operating systems?

       This patent license shall apply to the combination of the
       Software and any operating system licensed under the GNU Public
       License version 2.0 or later if, at the time Intel provides the
       Software to Recipient, such addition of the Software to the then
       publicly available versions of such operating system available
       under the GNU Public License version 2.0 or later (whether in
       gold, beta or alpha form) causes such combination to be covered
       by the Licensed Patents.

It is not clear whether "this patent license" means the license to make
'bug-fixing/ modifications, or the license before that:

       Intel hereby grants Recipient and Licensees a non-exclusive,
       worldwide, royalty-free patent license under Licensed Patents to
       make, use, sell, offer to sell, import and otherwise transfer
       the Software, if any, in source code and object code form.

If it's the latter, then use is effectively restricted (through patent
law, and not copyright law, but I don't think the OSD allows for such
distinction).  If it's the former, then the right to create derivative
works is effectively restricted (again, through patent law and not
copyright law).

Please remember that the OSI certifies *software*, so - in my opinion -
software distributed under this license, whose use or sale infringes
upon patent claims licensable by Intel, restricts the user's ability to
make derived works unacceptably, and discriminates against persons not
using a GPL'd operating system.

This means, IMO, that if software whose use or sale infringes upon
patents is to be considered "OSI Certified Open Source Software," the
patent license must also support the OSD.

Compare this license to the license a while back that restricted the
ability of the user to modify some "pay for this software" routines: if
the copyright holder of that software managed to get a patent for his
"pay for this software" routines, and distributed it under this
license, would it be considered "OSI Certified Open Source Software"?
-- 
 Matthew Weigel
 Research Systems Programmer
 mcweigel at cs.cmu.edu ne weigel at pitt.edu

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