For approval: MXM Public license

Tzeng, Nigel H. Nigel.Tzeng at
Thu Apr 9 15:36:39 UTC 2009

>From: Matthew Flaschen [mailto:matthew.flaschen at] 
>Tzeng, Nigel H. wrote:
>>> There is no way to produce a FOSS license that explicitly denies patent
>>> rights.
>> Mmmm...not providing patent rights is the same thing in as much as the
>> result is the same.

>Right, and every OSI-approved license provides patent rights, not
>withstanding the efforts by some to muddy the waters.

If this were absolutely true (the waters were not muddy) then there
would not have been a second (or third?) generation of OSI-approved
licenses with explicit patent grants.

If implicit patent grants were crystal clear and provided all the
protection required for open source why then almost all modern open 
source licenses have explicit grants?

>> The question is whether OSD #1 requires patent grants

>No provision of the OSD /explicitly/ requires any specific grant of
>intellectual property.  There is no mention of copyright, patent, or
>trademark in the OSD.  So saying, the OSD doesn't require patent grants
>makes no sense. It doesn't require copyright license grants explicitly
>either.  In practice, /both/ copyright and patent rights must be granted
>in order to ensure the actions listed in the OSD are possible.

Perhaps.  However, there appears to be licenses in the past without
explicit grants of patents and explicitly do not grant trademarks. 

Also, there has always been some "muddied" waters with respect to how far
some explicit patent grants in some older OSI approved licenses go with 
respect to forks.

The caveat "The patent license shall not apply to any other combinations 
which include the Contribution" in some licenses (mostly retired?)
has caused some discussion in the past I think.

>> Eh...ultimately an ISO reference implementation will get used with or
>> without OSI approval as "open source".

>If the submitter doesn't care about OSI approval they're free to leave.
>   But OSI shouldn't weaken its standards on the grounds of
>"inevitability" (though it's far from inevitable that a given ISO
>standard becomes popular).

I'm not suggesting that.  I'm simply saying that the OSI has been 
acknowledged as the arbiter of open source by ISO which should be giving
some folks (at least those not so self-righteous in their indignation
that someone would dare submit a license not up to spec) warm fuzzies.  

I would hope that the OSI would take the opportunity to say "yes, sorry, 
this isn't open source but perhaps we should think about a category of 
"reference software licenses".  This might be helpful to the community.

It might not.

However, Creative Commons has a wide range of licenses.  Some would meet 
the OSD,  some, like the noncommercial share-a-likes, would not.  While 
they don't step on OSI's toes by doing software licenses, if the OSI 
simply shows ISO the hand they might go to CC and ask for a wrapper on 
their site like for GPL v2.0, LGPL and BSD to clearly explain to developers 
their rights and responsibilities under the MXM license.  Then display a 
CC logo.

That's probably almost as good for them as OSI branding.  Yep, they sure
are free to leave.  Do you really want them to?

We're software folks.  We really SHOULD understand the concept of evolve
or become MUMPS coders.  Highly paid, sometimes desperately needed but 
mostly irrelevant to the software industry at large (no offense to MUMPS
programmers...just picking an older language at random).

No one is really filling a CC-like umbrella role for software licenses at 
the moment and perhaps it is too far outside the domain of open source 
for the OSI.

>>> If it were true that "it is widely understood that the BSD probably does
>>> not grant patent rights anyway", there would be no point to Clear BSD!
>>> Their argument is self-defeating.
>> I don't know that any aspect of implicit vs. explicit patent rights is 
>> widely understood by FOSS developers, period.

>Did I say anything about FOSS developers?  Letting developers come up
>with licenses without asking legal advice gives us things like the
>Artistic License.

It probably isn't all that clear to many lawyers either without first 
reading up on it. Even a few general IP lawyers.

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