[Fwd: Re: What would work instead of the MXM public license?]

[Lawrence Rosen]

> Carlo Piana writes:
>  > This does not help very much if the copyright holder is not the patent
>  > holder and vice versa. I think I have already tackled the issue of dual
>  > licensing.

Russ Nelson responded: 
> Then they're separate issues, and the copyright holder (licensor) and
> end user of the code (licensee) can/must treat the patent holder as a
> third party, who may or may not give a patent grant to open source
> implementations.

There is no need to hypothesize a new fact pattern.

The MPEG Working Group (ISO/IEC/JTC1/SC29/WG11) "is currently working on the
ISO/IEC 23006 MPEG eXtensible Middleware (MXM) standard, which has reached
the Committee Draft status, and this MXMPL license is intended to cover the
reference implementation of said upcoming standard." [See the original MXMPL
submission email dated 4/8/2009.]

The companies proposing this standard in the MPEG Working Group are aware of
patents whose claims read on that reference implementation. They are
proposing to distribute that reference implementation as actual software
under the MXMPL and they want to call it "open source software."

This would be the first license for open source software where the licensor
specifically intends that copies and derivative works will infringe known
patents, and where the patent owners intend to demand royalties and a
separate patent license for all such open source software. 

The way patent law works, the MXM licensors can't specifically prohibit us
from distributing patent infringing software. They just sit in wait until we
do, and then the patent owners are free to pounce upon us or our customers
with patent infringement lawsuits. That's how the real world of software
patents operates, but we don't need to bless this practice with OSI license
approval.

I suggested here earlier that this proposed license intentionally violates
OSD #7: "The rights attached to the program must apply to all to whom the
program is redistributed without the need for execution of an additional
license by those parties." 

Of course, some will say, the patents are bogus or silly or expiring or not
in the public interest, but those aren't the issues before us. Regardless of
our attitude toward software patents, I don't know of any ethical open
source implementer who will distribute open source software that is intended
to be infringing--without a patent license that authorizes its free use. We
know the MPEG Working Group companies are serious about demanding royalties
for their patents. They won't mind suing for patent infringement. They
intend to.

There is nothing in the MXMPL license that protects our community against
whatever patents the MPEG Working Group companies own, and that is risk
enough to recommend the disapproval of their license by OSI.

/Larry

P.S. I think this emphasizes the importance of a Warranty of Provenance in
open source licenses, such as in OSL/AFL 3.0:

   "Licensor warrants that the copyright in and to the Original Work
   and the patent rights granted herein by Licensor are owned by the 
   Licensor or are sublicensed to You under the terms of this License
   with the permission of the contributor(s) of those copyrights and
   patent rights."

Leaving out patent rights from an open source software license nowadays is
like giving you the source code and telling you that it is only available
for the appreciation of its expressive beauty.


Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen



> -----Original Message-----
> From: Russ Nelson [mailto:nelson at crynwr.com]
> Sent: Wednesday, April 15, 2009 7:58 AM
> To: license-review at opensource.org
> Subject: Re: [Fwd: Re: What would work instead of the MXM public license?]
> 
> Carlo Piana writes:
>  > This does not help very much if the copyright holder is not the patent
>  > holder and vice versa. I think I have already tackled the issue of dual
>  > licensing.
> 
> Then they're separate issues, and the copyright holder (licensor) and
> end user of the code (licensee) can/must treat the patent holder as a
> third party, who may or may not give a patent grant to open source
> implementations.
> 
> If a copyright holder wants to license software which they know is
> covered by a patent, then they can simply say so.  The legal
> arrangement afforded by the copyright has nothing to do with it.
> 
> And anyway, none of this applies to free thought countries; only the
> USA allows patents on purely mental processes.
> 
> --
> --my blog is at    http://blog.russnelson.com
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