Intel's proposed BSD + Patent License

John Cowan jcowan at
Tue Oct 30 19:01:52 UTC 2001

Russell Nelson wrote:

> [  Please review this license.  If you do so promptly enough, we may
> be able to include it in tomorrow's board meeting.  -russ  ]

I have tried to turn around this response as fast as possible,
so please forgive any defects of detail.

Executive summary: this license is not Open Source because works
governed by it cannot be freely used except on a limited class of
operating systems, and is not truly open-source software even there.

> To address
> concerns that users of Intel's contributions under the BSD license risked
> patent infringement claims from Intel, this license submission expressly
> includes patent licensing language.

So it does, but unfortunately not the right kind.  What the BSD license
gives away, the patent licensing language takes back.

> 2. Intel added certain definitions derived from the patent license in the
> Common Public License, and added a license grant under certain Intel patents
> to distribute Intel software contributions, alone or as incorporated in any
> operating system licensed under the GPL (version 2.0 or later).  

This provision carves out a safe harbor for Linux, but not
for other free operating systems.  It would be the height of irony if
software licensed under a so-called "BSD + Patent License" was not
usable by any BSD operating system, but such appears to be the case.
Criterion 8 (License Must Not Be Specific To A Product) is violated,
in substance if not to the letter; this license is in effect specific
to Linux.

> 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.

And so even on Linux, the software can't be substantially reused or
improved; only bugs can be fixed.  The copyright license allows you
to make such improved versions, but the patent license prevents you
or anyone else from actually *using* them for anything more than
"research".  In short, the hood is still welded shut,
even though there is a maintenance port on the side of the car.
Criterion 3 (Derived Works) goes by the board here, since the
kind of derived work that can be made (or more accurately, used)
is highly restricted.

> The patent license shall not apply to any other
> combinations which include the Software. 

Everything that is not permitted is forbidden.

This license is in effect much like the pre-QPL Trolltech license,
which was not Open Source because (inter alia) it forbade Open Source Qt
programs for Windows and MacOS.  Trolltech's own Qt ports to those
operating systems are still encumbered, but nothing (except time and
trouble) prevents someone from porting the Open Source Qt/X11 version
to Windows and MacOS.

If Intel's sole concern with the BSD license is that users may feel

at risk from its patents, it should adopt the CPL, which well
addresses those very concerns.  It would still be possible for
Intel to distribute a port of its software to unfree operating
systems that was itself encumbered without interfering with
Open Source.

I am not a lawyer; this is not legal advice.

Not to perambulate             || John Cowan <jcowan at>
    the corridors               ||
during the hours of repose     ||
    in the boots of ascension.  \\ Sign in Austrian ski-resort hotel

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