[License-discuss] [Non-DoD Source] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 09:07 AM, "Karan, Cem F CIV USARMY RDECOM ARL (US)" <cem.f.karan.civ at mail.mil> wrote:


I personally think that software that is distributed without a patent license or a waiver of patent claims is not Open Source (this is my opinion, and not a Government position).


It certainly fails a smell test in modern times.  However, this is not something addressed by the OSI board, called out by the OSD, and has only been ad hoc discussed by folks here.



Of particular significance, it calls into question whether there are any OSI-approved licenses that specifically exclude patent rights in the current portfolio or whether CC0 would be the first of its kind.  If there ARE, then CC0 would not create a precedent situation any worse than currently exists and approval could move forward.



If there AREN'T, that begs under non-proliferation for any new licenses that explicitly disclaim patent rights to be found OSD-inadequate, particularly w.r.t. clauses #1 and #7.  Moreover, any license approval for a new license containing a patent disclaimer (e.g., CC0) would necessarily require modification or accompaniment by a required patent grant mechanism (such as ARL's approach) in order to satisfy the OSD.



Of course, the OSI should still weigh in on this.  Either OSD is applied as-is and patents are part of "the distribution terms", they are considered separate for historical reasons, or the OSD requires modification.



It prevents people from freely modifying the code.


Actually holding a patent does not necessarily prevent modification of code.  Of course, there's doesn't seem to be much value in modifying the code if one doesn't have the right to use, sell, or export it but it's technically not prohibited.  Even more importantly, such modification could very well make the code no longer satisfy patent claims, thus it becoming usable, sellable, etc. again.



Cheers!
Sean

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