[License-review] MXM compared to CC0

[Carlo Piana]

On 02/03/2012 09:29, Chuck Swiger wrote:
> On Mar 2, 2012, at 12:12 AM, Carlo Piana wrote:
>>> The MXM license was obviously not OSD-compliant because you cannot discriminate against commercial use of  software and still be "open source".
>>>
>>> I think the actual effect of the CC0 license includes a covenant or promise by the Affirmer to not bring action to users of the CC0-licensed work for any reason, including patent rights, trademarks, or anything else.  If that isn't what folks mean to do, then they should find a different license to use than CC0.
>> I don't think you have it right.
> That's OK, I'm not surprised that you hold such an opinion.
>
>> MXM did not discriminate at all against commercial exploitation.
> Sure it did.  Quoting from Message-ID:<49DCA566.2040603 at piana.eu>:
>
> "I have insisted and obtained, however, that an explicit patent covenant
> be inserted, to the effect to exclude from any patent concern all who
> don't distribute the compiled version of the software and to those who
> compile it only for internal purposes without direct commercial
> exploitation."
>
> Both the repeated use of the word "exploitation" and the MXM definition:
>
> 1.0.1. "Commercial Use"
> means distribution or otherwise making the Covered Code available to a third party.'
> [ ... ]
> 2.1. General.
> This software has been developed as a reference implementation of ISO/IEC 23006.
> The Initial Developer and Contributors hereby irrevocably covenant (“Patent Covenant”) not to assert their Patent Claims over the Covered Code, regardless whether You have obtained a proper license on said patents and as long as the other provisions of this license are respected,  limited to any use of this software in Source Code, excluding any distribution as Executable or execution through runtime, debuggers or emulators. Patent Covenant is however extended to the compilation and use of a compiled version (as Executable) of this software for study and evaluation purposes only, with the exclusion of distribution of compiled code or any other commercial exploitation.
>
> ...are clear enough, are they not?


If you extract this from the context, surely it is. But that is not the
license, as MXM is a copyright-only license, and this is why, in my
recollection, it failed to be approved. That means, an OSI approved
license must license -- or atleast attempt to license -- all necessary
rights, not only copyright, otherwise you cannot use the software. I
accept and approve this stance.

On discrimination, let me ask you a question:

rightsholder A) says "you hereby receive all permissions to use software
X under copyright, but you don't receive any rights under patents" for
you it's fine

rightsholder B) says "you hereby receive all permissions to use software
X under copyright, but you don't receive any rights under patents; oh,
by the way, as patents are concerned, please be assured that this does
not cover use of the source code for study and evaluation" for you this
is discriminatory.

Frankly I fail to understand your logic and your definition of
discrimination. To me, the evaluation must be on if A gives all the
necessary rights without discriminating against any use, what's added is
just a plus, just as I added a provision "you can't use my trademark,
but you can use it for descriptive purposes and not to advertise the
product". Is this discriminatory against commercial use?

I would say "no", unless you deem that a trademark license is necessary
to the use of software, which I admittedly believe it is not.

So we are back to the question on whether the license has all the
necessary rights licensed. If it fails this test, it fails this test
regardless it excludes the license to all or only by discriminating
against  certain categories.

>
>> It had a patent covenant that you might as well have disregarded, for source only distribution.
> Source-only isn't sufficient; OSD #2 states "The program must include source code, and must allow distribution in source code as well as compiled form."
>
>> It was entirely agnostic versus patents. The covenant was an additional provision, not a part of the licensing conditions.  You might say that this is confusing as people would believe they have a license to patents, but I believe the same can be said for CC0.
>>
>> In this regard, you might want to explain why you believe that "No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, *licensed* or otherwise affected by this document." [emphasis added] does match with the idea that permission is given to use the software under the patent rights of the licensor. Which is precisely what MXM said: you don't have the patents of the licensor or of the contributors.
> CC0 doesn't include a license grant.  It does include a covenant not to bring action for any reason against users of the Work, and even uses terms like "royalty free" and "the public can reliably and without fear of later claims of infringement build upon, modify, incorporate in other works, reuse and redistribute as freely as possible in any form whatsoever and for any purposes, including without limitation commercial purposes...."
>
> ...which is very distinct from the language and intent of the MXM.

I very much beg to differ. CC0 contains a list of waivers under certain
rights, with the *express exclusion* of trademark rights (and I agree
with that) and of patent rights. We are evaluating it as a license, or
as its next best friend, so we are evaluating what freedom does it
provides and under which legal guarantees, methinks.

If I say that a right is *not* abandoned, waived, surrendered or
licensed, or otherwise affected, does it mean that by that legal
document I am giving you any permission or that I will be bound to not
assert my patents if any?

Are we evaluating legal code or intent? Because as a manifesto CC0 is
just nice, I love it, full marks.

As for the legal code I find it lacking and contradictory at best. And I
fear that if somebody uses it *for software*, this chap will be under
the *same* trouble as with BSD, MXM, WTF, MIT or any license that fails
to tackle the issue of patents. I.E. nobody will have minimum legal
guarantees or a defence to claim that software can be used without
having to ask permission by the very ones who create and distribute it.
At least the hyperpermissive licenses don't say anything, so you can
rely on promissory estoppel, /contra se venire/ or all other legal
theories. But the agnostic ones -- and I put both MXM and CC0 in that
category -- are in this more dangerous, as you cannot construe against
what it's clearly spelt out.

To be clear, this is not an attempt to revive MXM discussion, is to have
a clear understanding on what a license must have in it to be approved.
Intent and character of submitter are immaterial, or, as I said, _ad
personam_ argument.

With best regards,

Carlo