[License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]

John Cowan cowan at mercury.ccil.org
Thu Mar 8 21:53:25 UTC 2012

Rick Moen scripsit:

> That is, I _believe_ Russ was reminding us all of a fact sometimes
> forgotten, that suitable licensing is a necessary but not sufficient
> requirement for open source, and always has been:  E.g., if someone
> releases a binary codebase and claim it's BSD, you might reasonably
> believe it's open source -- but then you might notice that the source
> has for whatever reason never appeared or is no longer findable.

OSD #2 covers that: it is the only clause applicable to programs rather
than their licenses.  But there is of course no similar clause requiring
a program to be usable, and there cannot be.

In general, the OSD only works because copyright law is effectively
worldwide.  We cannot go saying that some well-known work is not open
source because someone holds a patent on its methods in Azerbaijan.

> At the beginning of the CC0 evaluation, I opined:  (1)  It's obviously
> OSD-compliant.  (2) It would be helpful if CC would drop the patent
> waiver from section 4a, leaving open the possibility if not likelihood
> of implicit patent grants and defences based on estoppel -- and OSI
> should ask CC to please consider doing so.

Agreed, although CC apparently is swamped at present and can't process
such a request.

> (3) Irrespective of CC0's merits as a fallback permissive licence,
> the document's fundamental reason for existing is foolhardy: the
> delusional belief that creative works can be safely magicked into the
> public domain despite a worldwide copyright regime,

I think this language is much too strong.  It's true that there is no
treaty or statutory language allowing abandonment, but most proprietary
rights can be abandoned by appropriate action.  I abandon hundreds of
rights in personal property every week when I take the trash to the curb.
We simply don't know how well copyright abandonment works, which is why
CC0 sensibly provides a backup license.

> and the equally delusional belief that it's even desirable to try (and
> thereby, among other problems, have no protection against warranty
> claims).

It's unclear that warranty claims have any teeth against something neither
sold nor offered for sale.  You'd have a hard time enforcing a warranty
on something you found in the trash.

Someone in the other thread raised the points of first sale and patent
exhaustion, but by the same token I doubt if pulling source code off
a website counts as a sale: there is neither an express nor an implied
contract here, I'd say.

There are three kinds of people in the world:   John Cowan
those who can count,                            cowan at ccil.org
and those who can't.

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