[License-discuss] patent rights and the OSD

Wed Mar 8 01:52:15 UTC 2017

Ben Tilly wrote:

> According to the statute as shown at https://www.law.cornell.edu/uscode/text/35/271, patent law covers selling and importing.  Which by my reading means that it does impact distribution of software, even if you do not run it.

I don't read the law quite that way. Certainly selling or importing a product that contains patented software for its intended use would be infringing. But merely importing or distributing source code that is licensed under CC0 does not infringe. I'd call it free speech.

Other opinions?

/Larry

From: Ben Tilly [mailto:btilly at gmail.com] 
Sent: Tuesday, March 7, 2017 4:27 PM
To: Lawrence Rosen <lrosen at rosenlaw.com>; License Discuss <license-discuss at opensource.org>
Subject: Re: [License-discuss] patent rights and the OSD

[<LER>]  

IANALTINLA and all that.

On Tue, Mar 7, 2017 at 3:57 PM, Lawrence Rosen <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> > wrote:

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. 

/Larry

From: License-discuss [mailto:license-discuss-bounces at opensource.org <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 <mailto: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.

Cheers!

Sean

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