[License-review] Submitting CC0 for OSI approval

[Karl Fogel]

"Clark C. Evans" <cce at clarkevans.com> writes:
>I'm in the camp that assumes a MIT/BSD license would also grant any
>patent license to use the work that the author may control.  This is 
>my assumption because those licenses don't specifically reference 
>copyright in the language.  Although, perhaps the MIT/BSD licenses, 
>popular as they may be, should be deprecated by the OSI if they are 
>seen as a substantial risk.

In general, the OSI should not deprecate widely-used licenses with long
pedigrees... But especially not for these reasons.

The law around software patents would be complex even if it were stable;
its increasing instability makes the whole field even more complex.  so
unless we're pretty sure that a license actually weakens a recipient's
patent position, we shouldn't deprecate or reject on the grounds that
the license merely makes explicit that it does not apply to patents.

>While the CC0 may be a fantastic public domain dedication and backup 
>license that keeps its nose clean and focused only on copyright law, 
>it seems that the explicit denial of patent license is a show stopper
>for it to be considered a solid open source approach.
>
>Perhaps the outcome here could be not approval of CC0 -- but instead,
>a CC00 or CIP0 public domain dedication that additionally includes 
>patent right abandonment as well?  That, I think would be OSD compliant
>and very happily deployed by software developers.

That could be one possible outcome of this process.  But it's not as
simple as "we abandon our patent rights".  For example, would it just be
about abanding patent rights for the code as released by the original
licensor, or would it mean abandoning patent rights on derivative works?
This sort of question does not come up with copyright, but it does with
patents.

Furthermore, as others have pointed out, in jurisdictions where there is
a public domain, a recipient could in theory strip the CC0 right off and
just distribute the code as-is -- so to whom would any waiver of patent
rights apply then?  Just those whose copies of the code happen to still
have the CC0 text attached, or at least have attribution information
attached?  It gets messy really quickly :-).

So my feeling is, to reject CC0 because of clause 4a, we have to be
*sure* that clause 4a actually

  * Increases a recipient's risk of being an infringement claim target,
       --> and/or -->
  * Weakens a recipient's defense against an infringement claim.

If it doesn't do either of those things, then it's not a big enough
concern to reject CC0, imho.  (Let's also remember that there are
benefits to having a better answer to questions about the public domain
and open source.  CC0 may not answer all of them, but it would help.)

-Karl