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

Rick Moen rick at linuxmafia.com
Fri May 24 03:08:08 UTC 2019

Quoting VanL (van.lindberg at gmail.com):

> 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.

Quite so.  Of course, warranty disclaimers, even all those exhaustive
ones in all caps to guarantee that U.C.C.'s requirement of them being
'conspicuous'[1], are toothless against patent infringement.  Otherwise,
there wouldn't be elaborate attempts at patent-peace enforcement,
attempts at defensive patent pools, and all the similar stuff we-all
have been talking about for twenty years or so (not counting pre-OSI

I don't _think_ that point is under debate.  If you've seen a warranty
disclaimer you think has any power against patent transgression, please
show.  Likewise, I imagine there are many other legal complications
external to the code and its covering licence statement that might
impair exercise of rights necessary to a work substantively being open
source.  (I'm blanking on other examples, at this exact moment, which
would be a problem if I were a 1L bright boy, but fortunately I'm just a
legal-curious sysadmin.)
> So, the codec is still open source, but there is still the
> newly-appreciated potential of infringement claims by a third party.

We may be talking at cross-purposes.  If so, my apologies.  My own view
is that if the codec's open source licence permission grant is curtailed
by external agency, e.g., by need to pay royalties on a newly revealed
patent, then by a function defintion, it's prevented from being open
source.  More pithily, if a codebase cannot clear the OSD#1 hurdle
(because royalties), then it's not OSD-compliant.  

Obviously, I'm very far from insisting others must share my view.  I'm
just trying to make sure I'm being clear (if only on account of jetlag

> 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.

I'm not trying to be argumentative, but what you say doesn't change is
exactly what I said does, as to use in those circumstances.

(Horses for courses, though.  As Flanders and Swann put it, IIRC,
everyone gets his own gout.)

[1] § 1-201(b)(10), https://www.law.cornell.edu/ucc/1/1-201
    § 2-316(2), https://www.law.cornell.edu/ucc/2/2-316

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Rick Moen            from anger.  Study how awful our ancestors had it, yet
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