[License-review] Request for consultation with CC on patent issue

[Richard Fontana]

On Tue, Feb 21, 2012 at 12:29:45PM -0500, Tzeng, Nigel H. wrote:
> You guys are also making assertions/speculating about CC0 that can be
> addressed by reading the FAQ.
> 
> http://wiki.creativecommons.org/CC0_FAQ

Thanks, I wasn't previously aware of that FAQ, SFAICR. 
 
> The design goal is to replicate a copyright dedication to the public
> domain.  If you can show me a dedication of software copyright into the
> public domain automatically conveys trademark and patent rights then I
> might be convinced you have a point.

Doesn't the text of CC0 imply that this is a possibility?  Otherwise,
why the reservation clause? IOW, if a(n approximation of a) dedication
of software copyright to the public domain could not *possibly* convey
any trademark or patent rights, what do we need CC0 4a for?

BTW, the CC0 FAQ says:

  What rights do I need to use a CC0’d work?

  That depends. If you want to use the affirmer’s trademark, you need
  to get permission first since CC0 doesn’t affect trademark
  rights. You may also need to get permission from other people who
  have rights in the work, such as privacy or publicity rights of
  persons whose likeness or image appear in a photograph or in another
  work.

It follows from this statement that if I want to practice the
affirmer's patent claims that read on the "affirmed" work, I may need
to get patent permission *from the Affirmer* first since CC0 doesn't
affect patent rights.

That may be OK for the OSI's purposes; I just want to make sure the
OSI is aware of this, and of the possibility of a conflict with
respect to the OSD. The solution may be to revise the OSD or to
acknowledge that the OSD is no longer of any particular authoritative
value in measuring licenses for open-source-ness. As to the latter,
that would not be a particularly shocking or horrible revelation to
me, though it may cause the OSI to reflect on how it wishes to guide
itself on making license approval decisions going forward. 

> I would more likely take the approach that licenses that provide explicit
> patent grants be moved into a recommended category than require it
> absolutely.  That sidesteps the issue of many existing widely used
> licenses no longer meeting OSD requirements.

The discussion around CC0 has actually raised a very discomforting
issue, which is that the general usefulness (other than in a purely
political sense) of the patent license grants in modern OSI-approved
licenses (Apache License 2.0, EPL, MPL, GPLv3, etc.) is being called
into question.

Let me just be clear again about what I believe is *different* about
CC0 compared to other widely-used OSI-approved licenses that are
silent on patent rights. Those other licenses do not suggest, as CC0
and this CC0 FAQ imply, that someone seeking to use a work must
separately get patent permission from the provider of the work.

 - Richard