Intel's proposed BSD + Patent License

Karsten M. Self kmself at
Tue Nov 6 22:08:59 UTC 2001

on Sun, Nov 04, 2001 at 11:13:54PM -0800, David Johnson (david at wrote:
> On Sunday 04 November 2001 09:47 pm, Karsten M. Self wrote:
> > >  > The patent license creates an explicit class of works under which the
> > >  > software is not freely utilizeable.
> > >
> > > No it doesn't.  The patent *system* creates this class of works.
> >
> > Specious.  You could make the same argument of any copyright license.
> > Exclusive rights in both cases are retained unless granted...explicitly
> > or implicitly.  Question for the lawyers:  does, over the life of a
> > patent, failure to seek enforcement, create a circumstance construable
> > as an implied license?
> Here's a license: "You may freely copy and redistribute this software,
> and modify it for use on operating systems licensed under the GPL
> version 2.0." Is this an Open Source License? In the absence of a
> copyright it is Open Source. In the presence of of a copyright it is
> not. Notice that it is the copyright *system* that makes this closed
> source, and not the license itself.

Good example.

My read:  no, it is not, for the same reasons Intel's patent-encumberd
BSD is not.  The license is specific to a class of works, and violates
term 6 of the OSD.


Karsten M. Self <kmself at>
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