What would work instead of the MXM public license?

[Bruce Perens]

Hi Carlo,

I am the creator of the Open Source Definition, and thus can shed some 
light on the parts that might be seen as ambiguous. I apologize for 
being on vacation during the first 40 messages of this discussion.

The OSD does not distinguish between copyright, moral rights, patents, 
contract restriction, or any other means of restricting what someone can 
do with software. It applies equally to all of those. And thus I believe 
that your proposed license, by making explicit that patent rights are 
not granted for a large class of binary derivatives of the program, 
violates most of the OSD rules, not just rule number 7.

You could, however, construct a license that is
1) fully compliant with the OSD and
2) grants patent rights only for derivative works under that license, and
3) spoils the potential revenue stream from non-commercially-licensed 
derivatives as much as it can.

For example, a patent grant that applies only to software under the 
AGPL3 license, along with an AGPL3 licensed reference implementation, 
would be sufficiently restrictive that many implementors would prefer to 
license commercially. You can simultaneously place your reference 
implementation under a commercial license and an Open Source license 
like AGPL3, so that those who wish to commercially license the patents 
have a well-defined path for doing so.

It may be that the AGPL3 isn't quite what you are looking for, I suggest 
it as an example of how far a license can go to spoil the potential 
revenue stream for a non-commercially-licensed derivative of a program, 
by mandating that a version that can be distributed at zero cost be made 
available.

So, what you get is the "free" world using the patent without charge, 
and the proprietary world using it under license and paying royalties.

This is not perfect, there are well-known ways for proprietary software 
suites to contain GPL-licensed components that they make use of without 
the creation of a derivative work. But it's the best I can offer you if 
you want to be OSD compliant.

Over the longer term I feel this is going to be moot. The free codecs 
from various organizations are getting better, many fundamental patents 
are expiring, and the tipping-point will soon be crossed. Then 
royalty-free becomes a standard checklist item for codec acceptance.

    Thanks

    Bruce