[License-discuss] patent rights and the OSD

[Ben Tilly]

I used weasel words, "..does impact distribution of software.."  By which I
meant that the act of distributing software CAN trigger patent law.  Not
that it always does.

Arguments can be made both ways on this.  Giving away software for free can
be argued to fall under, "Whoever actively induces infringement of a patent
shall be liable as an infringer."  But, as you said, free speech is
involved here.

That said, downloading compiled code in the US from a Canadian ftp site is
an activity that OSD #1 says should be allowed, but my understanding of US
patent law clearly says that this is forbidden.  And that's enough for
patent law to cross into territory that the OSD cares about.

(I'm still not a lawyer, etc.)

On Tue, Mar 7, 2017 at 5:52 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:

> 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>
> 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] *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> 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
>
>
>
>
>
>
> _______________________________________________
> License-discuss mailing list
> License-discuss at opensource.org
> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20170307/7cf0d852/attachment.html>