[License-discuss] Open source software licenses and the OSD

Lawrence Rosen lrosen at rosenlaw.com
Mon Nov 12 03:42:39 UTC 2018

Bruce Perens asked:

> Are the W3C meetings you mentioned the ones I attended? I lost support after I left HP.


I don't remember. I have a difficult enough time remembering my own history with this topic. I've repressed some of it, especially after I left Apache and thus left W3C. "Open standards" doesn't always mean open to the open source public, and W3C is a closed membership organization, much like OSI has apparently become. You and I can't always play there.


Lots of people in the open source community say: "We prefer no software patents at all." I don't agree because I know that the US Constitution is difficult to change. In any event, a royalty-free patent gives us what we need without changing the law, even if the patent owner retains defensive rights and the W3C equivalent of "patent copyleft" for the software. 


Please comment directly on the 10-item W3C Royalty-Free License <https://www.w3.org/Consortium/Patent-Policy-20170801/#sec-Requirements>  requirements. Can you incorporate them somehow into the OSD? Perhaps even use it as a professionally written model for a revised OSD that deals with both copyrights and patents?




From: Bruce Perens <bruce at perens.com> 
Sent: Sunday, November 11, 2018 7:02 PM
To: Lawrence Rosen <lrosen at rosenlaw.com>; license-discuss at lists.opensource.org
Subject: Re: [License-discuss] Open source software licenses and the OSD


Larry, Dave Rudin is in the group of supporters I meet with, and we've discussed this. Are the W3C meetings you mentioned the ones I  attended? I lost support after I left HP.






On Sat, Nov 10, 2018 at 1:02 PM Lawrence Rosen <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> > wrote:



I support your efforts for open standards and royalty-free patents. However, a couple of warnings for OSI over-reach in these areas. You are not alone. Please incorporate our own previous efforts, with the support of attorneys from many software companies and foundations, toward those goals. This can be a community effort.


1. The very term "open standards" causes diarrhea in some quarters. One of Linux Foundations' attorneys, for example, once irately walked out of my talk on that subject because his law firm supports RAND "for some standards." The standards organization OASIS had to allow all of "royalty-free," "RAND" and "FRAND" for their standards, although most of their standards are now royalty-free anyway. And IETF refuses to define the term at all, although they require patent notices from contributors, for whatever that may be worth.  I know from personal experience that standards participants are often afraid of free donations of their patents. This is a world-wide issue. I look forward to your report about your own interactions with those folks. 


2. The term "royalty-free patents" was the subject of several years' debate at W3C. I was then an invited expert from OSI to advocate for the open source community. We won a great patent license model for open standards. It has since been widely accepted by the software industry. Its 10-item definition of royalty-free patent licenses was written by our W3C committee with excellent advice from some of the attorneys on this license-discuss@ list from those companies. We are all proud! I recommend that model for incorporation – in some way, perhaps by reference – with the OSD.


3. I then worked for several years with David Rudin from Microsoft and representatives from others in the software and open source communities in the Open Web Foundation (OWF). Our "open specification" licenses, which incorporated the best from the OSD and the W3C definitions, are posted on that website. Please feel free to add us as supporters for your own OSI efforts.


I'll take the flak from that irate attorney a few years ago by using this phrase: "We want open standards, with royalty-free patents, for open source software."




P.S. You said you didn't want to participate in this discussion "when it features conflation of the license under consideration with other licenses." That is the entire purpose of "license-discuss@" rather than "license-review@". I am obeying Simon Phipps and others when I moved this discussion here. Indeed, it is a great place to discuss open standards, royalty-free patents, and lots of open source software issues, before OSI acts on its own.




From: License-discuss <license-discuss-bounces at lists.opensource.org <mailto:license-discuss-bounces at lists.opensource.org> > On Behalf Of Bruce Perens
Sent: Saturday, November 10, 2018 12:56 AM
To: license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> 
Subject: Re: [License-discuss] Open source software licenses and the OSD




No problem. OSI is fighting in the standards arena and the EU with very well-funded entities that insist that Open Source is only about copyright and wish to assert their royalties on standard-essential patents when there is an Open Source implementation. The way they have gone about it would astound you, but we'll save that for another forum. Freedom is not just about copyright, and any time someone seems to imply that OSI or the OSD is just about copyright, I'll push back, even if that implication wasn't really their intent.


I am not otherwise participating in a lot of this discussion when it features conflation of the license under consideration with other licenses authored by the discussion participants. I understand the authors are upset about those licenses, this just isn't the place.


I thought Bradley had good points, though. 






On Fri, Nov 9, 2018 at 4:15 PM Nicholas Matthew Neft Weinstock <nweinsto at qti.qualcomm.com> wrote:

Hi Bruce,


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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