[License-review] Submitting CC0 for OSI approval

Karl Fogel kfogel at red-bean.com
Sun Feb 19 01:14:03 UTC 2012 

Richard Fontana <rfontana at redhat.com> writes:
>What is the position of Creative Commons on the following question: To
>what extent can a CC0 Affirmer sue a CC0 Affirmee for patent
>infringement for the mere exercise of "Copyright and Related Rights"
>waived/licensed under sections 2 and 3 of CC0? I read 4a as saying
>that the CC0 Affirmee is on notice that he or she or it has no defense
>based on CC0 itself to a subsequent patent infringement claim.
>
>[...]
>
>I'm not sure I understand that. It does mean *potentially* that
>"there's a patent license over here that you need to sign onto". So if
>OSD 7 does not cover the mere possibility of some later-in-time
>additional license requirement by the same licensor or its successor,
>that's fine. 

The ambiguous passive voice in OSD 7 does not help matters :-).  I
interpret "The rights" in OSD 7 as referring to the rights explicitly
granted by whatever license (or perhaps PD dedication) the rightsholder
has attached.  THat is, OSD 7 merely says that rights granted at the
point of origin must travel -- the mere chaining of recipients cannot
cause new grants to be required nor cause rights to be subtracted.

However, it's time for some data!

Below are...

  1) All OSI-approved licenses that do not contain the word "patent"
  2) All OSI-approved licenses that *do* contain the word "patent"

So far I've found one license in category (2) that is directly relevant
to our discussion of CC0 -- the EU DataGrid Software license:

  http://opensource.org/licenses/EUDatagrid

That license's "DISCLAIMER" section contains a generic disclaimer that
states, among other things, that no patent rights are conveyed, not
necessarily even by the licensor:

  "THE EU DATAGRID AND CONTRIBUTORS MAKE NO REPRESENTATION THAT THE
   SOFTWARE, MODIFICATIONS, ENHANCEMENTS OR DERIVATIVE WORKS THEREOF,
   WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
   PROPRIETARY RIGHT."

(Interesting that patents are mentioned but trademarks are not.)

I've quickly surveyed the other licenses in category (2) -- and
summarize some of them below -- and most of them deal with patents more
extensively.  They often have the Licensor conveying any necessary
patent rights, often have Contributors doing the same (presumably if
they distribute the software), and some also contain license termination
provisions against those initiating patent infringement claims.

Of those that only mention patents briefly in the "DISCLAIMERS" section,
most of them just disclaim about third-party patents -- as far as I can
tell, EU DataGrid is unique in not limiting that disclaimer to third
parties.  (But my survey was quick, so I might have missed something.)

For reference:

1) All OSI-approved licenses that do not contain the word "patent":

  * http://opensource.org/licenses/NCSA
  * http://opensource.org/licenses/VSL-1.0
  * http://opensource.org/licenses/WXwindows
  * http://opensource.org/licenses/xnet
  * http://opensource.org/licenses/ZPL-2.0
  * http://opensource.org/licenses/Zlib
  * http://opensource.org/licenses/AAL
  * http://opensource.org/licenses/BSD-3-Clause
  * http://opensource.org/licenses/BSD-2-Clause
  * http://opensource.org/licenses/BSL-1.0 (Boost Software License)
  * http://opensource.org/licenses/EFL-2.0
  * http://opensource.org/licenses/Entessa
  * http://opensource.org/licenses/Fair (shortest license ever, btw)
  * http://opensource.org/licenses/LGPL-3.0
  * http://opensource.org/licenses/HPND (deprecated by author anyway)
  * http://opensource.org/licenses/IPA
  * http://opensource.org/licenses/ISC
  * http://opensource.org/licenses/LPPL-1.3c
  * http://opensource.org/licenses/MirOS
  * http://opensource.org/licenses/MIT
  * http://opensource.org/licenses/Sleepycat
  * http://opensource.org/licenses/Simple-2.0
  * http://opensource.org/licenses/QPL-1.0
  * http://opensource.org/licenses/pythonpl (CNRI portion of Python license)
  * http://opensource.org/licenses/Python-2.0l (PSF license)
  * http://opensource.org/licenses/PostgreSQL
  * http://opensource.org/licenses/PHP-3.0
  * http://opensource.org/licenses/OGTSL
  * http://opensource.org/licenses/NGPL (Nethack)
  * http://opensource.org/licenses/Naumen
  * http://opensource.org/licenses/NTP (almost shortest license ever, btw)
  * http://opensource.org/licenses/Multics

2) All OSI-approved licenses that *do* contain the word "patent":

  * http://opensource.org/licenses/OFL-1.1

    "DISCLAIMER" section contains generic patent infringement disclaimer
  
  * http://opensource.org/licenses/RPSL-1.0
    2.2 other entities patents are not our fault
    2.3 licensor conveys patent rights
    3a you grant patent rights too
    5.0 any other patent rights excluded, except as otherwise stated.
        specifically, "your Extensions" may require patent license
    11c terminates license if you initiate patent infringement claim
  
  * http://opensource.org/licenses/RPL-1.5
    3.3 licensor conveys patent rights
    4.2 contributor conveys patent rights
    5.0 any other patent rights excluded, except as otherwise stated.
        specifically, "your Extensions" may require patent license
    5.1 this might infringe other entities' patents; not our fault
    6.3b Contributor API authors must notify of patents needed to implement API
    12.2 terminates license if you initiate patent infringement action
  
  * http://opensource.org/licenses/RSCPL
    2.1, 2.2 convey patent rights from originator and contributors respectively
    3.4.2 says APIs must mention patents in LEGAL file
    8.1, 8.2 terminates license if you initiate patent infringement action

  * http://opensource.org/licenses/EUDatagrid

    "DISCLAIMER" section contains generic patent infringement disclaimer,
    but relevant to the CC0 discussion:
  
    "THE EU DATAGRID AND CONTRIBUTORS MAKE NO REPRESENTATION THAT THE
     SOFTWARE, MODIFICATIONS, ENHANCEMENTS OR DERIVATIVE WORKS THEREOF,
     WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
     PROPRIETARY RIGHT."
  
  * http://opensource.org/licenses/EUPL-1.1

    Quick summary: Licensor conveys necessary patent rights
  
  * http://opensource.org/licenses/LGPL-2.1
    Odd clause: "Finally, software patents pose a constant threat to the
    existence of any free program. We wish to make sure that a company
    cannot effectively restrict the users of a free program by obtaining
    a restrictive license from a patent holder. Therefore, we insist
    that any patent license obtained for a version of the library must
    be consistent with the full freedom of use specified in this
    license."
  
    Some other language as well; see the license.
  
  * http://opensource.org/licenses/W3C
  
    Disclaimer appears to only apply to third-party patents:
  
    THIS SOFTWARE AND DOCUMENTATION IS PROVIDED "AS IS," AND COPYRIGHT
    HOLDERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
    INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
    FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE USE OF THE SOFTWARE
    OR DOCUMENTATION WILL NOT INFRINGE ANY THIRD PARTY PATENTS,
    COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS.
  
  * http://opensource.org/licenses/Artistic-2.0

    It's all in 13:
  
    "(13) This license includes the non-exclusive, worldwide,
    free-of-charge patent license to make, have made, use, offer to
    sell, sell, import and otherwise transfer the Package with respect
    to any patent claims licensable by the Copyright Holder that are
    necessarily infringed by the Package. If you institute patent
    litigation (including a cross-claim or counterclaim) against any
    party alleging that the Package constitutes direct or contributory
    patent infringement, then this Artistic License to you shall
    terminate on the date that such litigation is filed."
  
  * http://opensource.org/licenses/SPL
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/Watcom-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/AFL-3.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/APL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/Apache-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/APSL-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/CATOSL-1.1
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/CDDL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/CPAL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/CUA-OPL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/EPL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/ECL-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/AGPL-3.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/GPL-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/GPL-3.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/IPL-1.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/LPL-1.02
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/MS-PL
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/MS-RL
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/Motosoto
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/MPL-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/NASA-1.3
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/nokia
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/NOSL3.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/OCLC-2.0
    [I haven't prepared a summary.]
  
  * http://opensource.org/licenses/OSL-3.0
    [I haven't prepared a summary.]

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