MPL, CDDL, patents and licencing

[ROD DIXON, J.D., LL.M.]

-----Original Message-----
From: Jason White [mailto:jasonjgw at pacific.net.au] 
Sent: Sunday, February 06, 2005 9:06 PM
To: license-discuss at opensource.org
Subject: MPL, CDDL, patents and licencing

First, I apologize in advance if this post is off-topic. According to
the OSI Web site, the mailing list is for discussion of licences that
are under review, but a perusal of the archive indicates that
miscellaneous licencing questions not necessarily related to current
review processes are also considered. Nevertheless I would be pleased
to take this discussion elsewhere if desired.

As one who is committed to free software (in the FSF sense) and open
source (in so far as the two are consistent), I have taken a keen
interest in recent public controversies surrounding the CDDL licence
and licencing more generally. I don't want to bring those
controversies here, except to say that I believe the OSI was justified
in approving the CDDL and that it has the advantages that John Cowan
noted on this mailing list with respect to the MPL, in particular of
being a more reusable licence. Again I would rather not enter into the
CDDL/MPL debate at this point.

First issue: the carefully circumscribed patent grants in the MPPL, which
are almost
identical to those of the CDDL (although the latter are slightly wider
with the removal of the "code that you separate" clauses).

Suppose the Initial Developer or a Contributor patents an algorithm,
then implements it in covered code, thereby making a grant under
section 2.1 (b) or 2.2 (b) respectively. You then receive a copy of
the software and (case 1) rewrite the implementation of the patented
algorithm, or (case 2) add a new module containing an implementation
of the patented algorithm. The question is whether you have infringed
the patent contrary to the licence in either or both cases. I can
think of several alternative analyses that might be given of how to
apply the qualifications in sections 2.1 (d) and 2.2 (d) to the grants
in 2.1 (b) and 2.2 (b) in these circumstances, which give different
results, but as I don't have a background in patent law and haven't
researched any relevant case law I'll forego the speculation and just
ask the question.

I also notice that there is an asymmetry between the Initial Developer
and Contributors in both the MPL and the CDDL in that only the latter
are subject to the following provision (here quoting the CDDL version
with the cross-reference omitted):

"You represent that You believe Your Modifications are Your original
creation(s) and/or You have sufficient rights to grant the rights
conveyed by this License."

So, if a contributor contributes modifications in the knowledge that
they are subject to third-party copyright or patent claims which the
contributor isn't entitled to sublicence under section 2, then
presumably the contributor has made an intentional misrepresentation
in virtue of the above-quoted provison. In most jurisidctions would
this amount to a breach of the licence terms, and do you think the
absence of a parallel "representation" requirement covering initial
developers is problematic or are there sound reasons for it?

[snip]

Jason, it would help those willing to respond to some of the questions
posted here, if posters wrote concisely. In response to your first question,
the answer is yes. Although I am not sure what you mean precisely by
"jurisdiction," the clause you quote -- as far as copyright is concerned --
merely means that those who contribute code to a  project must have the
(copy)right to do so. The clause does not explicitly reference a
corresponding obligation for the initial developer because it is clearly
implied. 

Rod Dixon, J.D., LL. M.
www.Cyberspaces.org/dixon/