[License-discuss] patent rights and the OSD
lrosen at rosenlaw.com
Tue Mar 7 23:57:02 UTC 2017
Christopher Sean Morrison wrote:
> Software patents are terrible in part because they pertain to the source
code itself, thus affecting the distribution terms on that code.
Patents don't pertain to source code or to code distribution, at least not
in legal terms of direct patent infringement. Patent rights pertain to the
"use" of the software, not its written description.
Patents are already described as publicly as open source code (see
USPTO.gov), but one is under patent law and the other under copyright law.
This openness of publication under patent law is on purpose, although with
the flood of software patents and their obscure language, this publication
openness is not very helpful to creators of copyrighted software. But this
doesn't affect source code or its distribution, certainly not literally in
the many jurisdictions where the patents are ineffective, nor in the U.S.
Where this discussion can go awry is when we interpret the OSD too broadly
with respect to patents. The OSD can be clarified or amended, but at its
birth nobody fully understood software patents. After reading the CC letter
to the White House
(https://github.com/WhiteHouse/source-code-policy/issues/149), I can agree
it is a complicated problem.
From: License-discuss [mailto:license-discuss-bounces at opensource.org] On
Behalf Of Christopher Sean Morrison
Sent: Tuesday, March 7, 2017 3:10 PM
To: license-discuss at opensource.org
Cc: License Discuss <license-discuss at opensource.org>
Subject: Re: [License-discuss] patent rights and the OSD
On Mar 07, 2017, at 04:45 PM, Ben Tilly <btilly at gmail.com
<mailto:btilly at gmail.com> > wrote:
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.
I hear you, but I don't see where the OSD says that. It does not mention
copyright law. The OSD annotated or otherwise doesn't even mention the word
'copy'. It (specifically?) says "the distribution terms".
While I certainly can understand the perspective that there are other laws,
regulations, and factors, not all of them affect distribution terms of the
software -- they are restrictions on me, my assets, my situation, not the
software. Software patents are terrible in part because they pertain to the
source code itself, thus affecting the distribution terms on that code.
In a way, it's convenient that the OSD does not specifically call out
copyright and speaks generically. It's a testament of forethought (or luck)
of the original authors.
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