For approval: MXM Public license

Richard Fontana rfontana at
Wed Apr 8 17:43:16 UTC 2009

On Wed, 08 Apr 2009 19:10:27 +0200
Carlo Piana <osi-review at> wrote:

> If the answer is "in order to be OSI certified the license should
> grant -- explicitly or implicitly -- the right to use the patented
> stuff in it", then the discussion is over because the avoidance of
> such licensing has been chartered to the license since the beginning,
> and thus there is *no* way to produce an ISO/IEC reference
> implementation under an OSI certified license.
> I guess this should be reflected in the OSD, though, not only in the
> opinion of the discussants.
> I remain skeptical about the notion that the BSD provides a patent
> license at all, leave alone a "solid" implicit patent license. I
> think I am not alone in this, as some distinguished expert like Dan
> Ravicher, or those who have conceived the Clear BSD license, have
> different opinions. Same appears to be the case for some of the
> members of this list [0]. Maybe this is beyond the point, but I don't
> buy this argument at face value. If the BSD remains silent, then at
> least it allows a great deal of ambiguity (I am not a big fan of BSD
> or of permissive licenses in general, I guess it is clear, I am more
> of a copyleft guy).

I think the problem here is that this license clearly puts the user on
notice that he/she may need to pay patent royalties to the copyright
licensor for exercising rights that OSI-approved licences are supposed
to provide.  

If a copyright holder licenses some software (including source code of
course) under the BSD license, and then that copyright holder (not some
unrelated third party) demands patent license fees from his BSD
licensees for "redistribution and use" of that same software, and that
software, under those circumstances, is considered "Open Source" by
reference to the Open Source Definition merely because, in isolation,
the BSD license meets the Open Source Definition, then perhaps there is
something missing from the Open Source Definition. 

For the most part the OSD refers to licenses, which I think overlooks
the reality (at least as I see it) that whether something is really
FOSS may be affected by circumstances external to the license itself.
This is certainly the way we analyze such matters at Red Hat, and in
the Fedora Project. In one respect the OSD recognizes this fact: The OSD
prevents one from calling "Open Source" some software for which source
code is not provided, even if the license formally meets OSD 1 and
3-10. Perhaps the OSD ought to be revised to prevent one from calling
software "Open Source" if the licensor's grant of rights is
contradicted by more or less simultaneous actions by that licensor
(using copyright law, patent law, or otherwise).  This of course is a
problem that the various versions of the GPL try to solve explicitly in
the license. 

- RF

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