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

VanL van.lindberg at gmail.com
Thu May 23 21:22:59 UTC 2019

On Thu, May 23, 2019 at 1:36 PM Rick Moen <rick at linuxmafia.com> wrote:

> Quoting John Cowan (cowan at ccil.org):
> > The deep [patent] threat comes from third parties, which is a risk
> > that neither ther the licensor nor the licensee can reasonably
> > mitigate.
> [snip]

> I _would_ join everyone in calling that open source -- and would
> continue to do so in this scenario until two days after v. 2.1 emerges,
> two years later, when MPEG-LA or Qualcomm suddenly says 'Please pay
> exhorbitant royalties for our cherished if little known patent.'  I
> would now, if asked (and if credible people say the infringement claim
> has teeth), say the example codec implementation is _not_ open source
> (within reach of that patent), even though I asserted yesterday that it
> was -- because now it is known to fail OSD#1, and yesterday it was
> believed not to.

Open source only reflects permission from the licensor (or in some cases,
the direct distributor) to exercise otherwise-exclusive IP rights. The
whole "no warranties" part of open source licensing is precisely to deal
with the unknowability of potential infringement claims.

So, the codec is still open source, but there is still the
newly-appreciated potential of infringement claims by a third party.

It is possible that under certain licenses (e.g. GPLv2) that the
distributor might need to stop distributing, or identify particular
jurisdictions in which it can be distributed, but that doesn't change its
open source status.

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