[License-discuss] comprehensiveness (or not) of the OSI-approved list

Christopher Sean Morrison brlcad at mac.com
Wed May 22 14:03:19 UTC 2019

I believe the underlying problem is that the OSI as a community has been largely ineffective at reconciling patent right concerns with respect to the OSD.

On the one side, you have people that seem to think of patents as this extrinsic issue, that a license (only) pertains to copyright concerns on the source code.  On another side, you have people that see them as one and the same as they are to a user wanting to use/incorporate/derive that source code.  I believe lawyers (patent lawyers in particular) tend to align with the prior as that’s how they’re handled in court while users and laymen have the counter perspective.

If a license explicitly excludes patent rights, then that license arguably violates OSD #7 if and only if an applicable patent exists.  However, it clearly *complies* when a patent doesn’t exist.  This results in a general perception that the license is Open Source as most software is not patent-protected.  Is it the license's fault that a patent exists?  It can be argued both ways when it explicitly excludes necessary rights that do cover the code.

Until this community reconciles where the OSI (and by extension the OSD) stands with respect to patents and patent rights, specific cases like CC0 are potentially endless debates.  Until a court finds a permissive license as NOT implying a patent grant, one can reasonably argue that explicit exclusion of rights would set a precedent too, so it’s worth careful consideration.


> On May 22, 2019, at 9:12 AM, Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu> wrote:
> Let's clarify the history on CC0.  
> Objection to CC0 was primarily you and Bruce which made it DOA regardless of the opinions of the rest of the list.  There was no "quickly growing consensus" when they pulled the plug.
> Many, if not the majority, of folks on L-R thought this should have been an easy open and shut approval:
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001429.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001429.html>
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001430.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001430.html>
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001432.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001432.html>
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001434.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001434.html>
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001443.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001443.html>
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001441.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001441.html>
> And I got tired of reading that thread again….folks that care to can do so to see that the list was in favor of approval.
> What was happening behind the scenes on the OSI board I cannot say but to say that “the Committee felt that approving such a license would set a dangerous precedent” is a significant overstatement.  
> The fact remains that CC0 is a widely used Open Source license approved by CC, FSF and the USG.  OSI approval, or lack thereof, has had minimal impact on its use.  John Cowan succinctly made this point in 2012:
> "I would, and gladly.  But it wouldn't be CC0.  People are *already* publishing software under CC0, and now they can't even say it's Open Source.  That *sucks*."
> http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001570.html <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2012-February/001570.html>
> ObDis: Speaking for myself and not APL.
> On 5/21/19, 12:56 PM, "License-discuss on behalf of Richard Fontana" <license-discuss-bounces at lists.opensource.org <mailto:license-discuss-bounces at lists.opensource.org> on behalf of rfontana at redhat.com <mailto:rfontana at redhat.com>> wrote:
>     On Tue, May 21, 2019 at 12:30 PM Nicholas Matthew Neft Weinstock
>     <nweinsto at qti.qualcomm.com <mailto:nweinsto at qti.qualcomm.com>> wrote:
>     [...]
>     > OSI does not do so with regards to prospective licenses.  It considers other factors besides the published definition.
>     >
>     [...]
>     > OSI’s License Review committee was unable to reach consensus on approving CC0,
>     The wording in the FAQ you referenced
>     (https://opensource.org/faq#cc-zero <https://opensource.org/faq#cc-zero>) is slightly but meaningfully
>     different: "the License Review Committee was unable to reach consensus
>     that it should be approved". Based on what I recall of the discussion,
>     that seems to be a polite way of saying that there was a quickly
>     growing consensus that it should be rejected.
>     > but not because it failed any element of the OSD (https://opensource.org/faq#cc-zero <https://opensource.org/faq#cc-zero>).
>     The sentence "While many open source licenses simply do not mention
>     patents, it is exceedingly rare for open source licenses to explicitly
>     disclaim any conveyance of patent rights, and the Committee felt that
>     approving such a license would set a dangerous precedent, and possibly
>     even weaken patent infringement defenses available to users of
>     software released under CC0." was written by an OSI board member
>     several years ago and may not fully reflect the current view of the
>     OSI board; I recommend that they review this FAQ.
>     I am not sure if you are doing this intentionally (I notice you are
>     writing from a Qualcomm address) but there's nothing in that FAQ that
>     suggests that CC0, in the views of the participants in that l-r
>     discussion, did *not* think it failed elements of the OSD. Indeed my
>     recollection is that some participants in that discussion specifically
>     pointed to OSD 7 as a basis for nonconformance of CC0 with the OSD.
>     (I don't necessarily disagree with the main point you were making.)
>      Richard
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