[License-discuss] patent rights and the OSD

Ben Tilly btilly at gmail.com
Tue Mar 7 21:45:08 UTC 2017

My legal rights to software on the computer in front of me may be
restricted by many things.  A short and incomplete list includes copyright
law, patents, contracts, who owns the computer and my employment status.
Any and all of these can impact whether I actually enjoy the freedoms that
the OSD describes.  I may be unaware of or misinformed about any or all
these potential encumbrances.

When we talk about whether a software license is OSD compliant, we are only
addressing the question of whether this license restricts software under
copyright law in a way that violates the OSD.  In principle it is generally
impossible to decide whether I *actually* have the rights described by the
OSD to the software in front of me.

(I am not a lawyer and this is not legal advice.)

On Mon, Mar 6, 2017 at 3:41 PM, Christopher Sean Morrison <brlcad at mac.com>

> In light of the recent CC0 discussion, I’m refreshing my mind on what
> rights are provided under patent law, each of the OSD criteria, and any
> connections between them.
> From my reading, a patent gives the holder the right to exclude others
> from (a) making, (b) using, (c) selling, or (d) importing/exporting their
> invention.  The OSD clauses refer to “the distribution terms” in rather
> license- and copyright-agnostic terms, so here’s my basic layman analysis:
> 1) Exclusion (a) seems not problematic for the OSD as it precludes others
> outside of licensing.
> 2) Certainly a problem in the broad sense, but exclusion (b) seems not
> problematic with the OSD.
> 3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and
> possibly #7 (Distribution of license).
> 4) Exclusion (d) similarly fails #1 and #7.
> So what?  In terms of OSD compliance, there appears to be several issues
> if a patent exists and one does not grant/hold a royalty-free patent
> license.  If I have a software patent and license that software under CC0,
> for example, without any other distribution terms in place, it’s my reading
> that this would technically be distribution terms that violate OSD #1 and
> #7.
> This creates an interesting situation where “the distribution terms” of
> some software will depend on whether the distributor holds a patent, not
> necessarily on the language of their license.  There are, of course, ample
> examples of licenses that convey conforming patent rights, both implicit
> and explicitly.
> Does anyone disagree that holding a patent and not granting a patent
> license violates the OSD, perhaps as an out-of-band perspective?  Should
> the OSD only be measured against a copyright standard, as originally
> drafted?  Does OSI need to clarify “all bets are off” if there’ s a patent
> or consider them as part of the distribution terms equally?  What are other
> people’s thoughts on this?
> Cheers!
> Sean
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