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

Tzeng, Nigel H. Nigel.Tzeng at jhuapl.edu
Wed Mar 8 00:14:09 UTC 2017

I dislike this approach. If CC0 passes OSD then it should get approved as is. If a patent grant is now a requirement to pass the OSD it should be added as a criteria and a license passes or fails based on the license text itself.

Not CC0 and some patent agreement that has not been written.

If Creative Commons feels strongly that CC0 should only be used with some sort of patent grant the easiest course is simply to remove the disclaimer of patent grant and call it CC0-software or something. Then it would have the same implicit grant as BSD and there is no issue with approval and no new composite license structure that will just confuse people even more.
From: Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ at mail.mil<mailto:cem.f.karan.civ at mail.mil>>
Date: Tuesday, Mar 07, 2017, 4:56 PM
To: license-discuss at opensource.org <license-discuss at opensource.org<mailto:license-discuss at opensource.org>>
Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD

That is true, but OSI can make it clear that when software is licensed, then the licensor is expected to license any necessary patents that the licensor owns along with licensing the copyright.  If there are patents that the licensor is unaware of, then the licensor can't do anything about that either.

And like you, I'm not a lawyer, and this is not legal advice.

Cem Karan

> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Ben Tilly
> Sent: Tuesday, March 07, 2017 4:45 PM
> To: License Discuss <license-discuss at opensource.org>
> Subject: [Non-DoD Source] Re: [License-discuss] patent rights and the OSD
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> ________________________________
> 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 < Caution-mailto:brlcad at mac.com > > wrote:
>        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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