[License-discuss] Open source software licenses and the OSD
Nicholas Matthew Neft Weinstock
nweinsto at qti.qualcomm.com
Sat Nov 10 00:14:40 UTC 2018
I’m sorry, I think there’s a disconnect.
I read Larry’s statement to be about the definition of Open Source Software, but you’re referring to standards and patents in standards. I didn’t intend to get into a discussion of standards.
I don’t have a problem with Open Source Licenses that have a royalty-free Patent license as one of the license grants, and therefore requires a royalty-free Patent license from Contributors. This makes complete sense. I’m simply saying that it’s impractical to expect a project maintainer to conclusively state that nobody has royalty-bearing claims. For Patents and Trademarks, at most, they can only make that claim about Contributors’ claims.
It wouldn’t be fair for Disney to contribute a picture of Mickey Mouse to a project and then sue for Trademark violation. But if a random Contributor adds a picture of Mickey Mouse to a project, Disney can still enforce their Trademark.
An interesting example of this (for Patents) is the Opus codec. If you look at the bottom of their license page (http://opus-codec.org/license/), they indicate that they actually made the effort to have outside counsel evaluate potential 3rd party patents, and provide the results. How many Open Source projects would be willing to do this, let alone have the financial backing to afford it? Or conduct a worldwide search of registered Trademarks? And even in the case of Opus, they only cite analysis of patents disclosed by four companies to the associated standards organization (IETF). What if there are other companies with (possibly) relevant patents that didn’t make disclosures to the IETF? What if someone contributed a picture of the cartoon penguin to use as the codec’s mascot?
On the other hand, an open source project can make the claim that there are no royalty-bearing Copyright claims, because the only Copyright claims covering the project are from Contributors.
Bruce Perens wrote:
I am the standards chair of OSI. We are indeed concerned with patents in standards, and we spend a lot of time and money on the issue. We assert that the OSD terms apply to patents as well as copyright.
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