[License-review] MXM compared to CC0

[Chuck Swiger]

On 3/5/2012 4:54 AM, Carlo Piana wrote:
> On 02/03/2012 09:29, Chuck Swiger wrote:
[ ... ]
>> 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 at least attempt to license -- all necessary
> rights, not only copyright, otherwise you cannot use the software. I
> accept and approve this stance.

Open source software must allow a user to run the software, as well as modify 
it and make modified versions available to others, both in software source 
code and compiled formats.

> 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.

If you are trying to consider a hypothetical position and "your" is in 
reference to that, well, I admit I don't understand it either.  :-)

If you were trying to speak for what I actually believe, then the description 
involving rightsholder A is not my position.

> 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, that a trademark restriction is not discriminatory against 
commercial use.

It might be relevant to note that my local legal framework permits and/or even 
encourages nominative fair use of trademarks for identification and commercial 
marketing purposes, even without permission from the mark holder:

   http://en.wikipedia.org/wiki/Nominative_use

(I should also note that making something available for sale provides an 
implied patent grant to exercise rights necessary and customarily associated 
with using that product, which leads into areas like the first-sale doctrine 
and patent exhaustion.  Can one claim to have purchased a CC0 work for its 
offered price of "royalty-free"...?  :)

> 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 agree this far.

> 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.

Yes.

[ ... ]
>>> 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...." [1]
>>
>> ...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?

Portions of the CC0 make the attempt to place trademark and patent rights out 
of the scope of CC0.

Other portions disclaim ownership (if possible) and offer royalty-free license 
to the Work, even though those rights would be under the scope of patent law, 
assuming the Affirmer had relevant patent rights associated with the Work.

> 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.

Yes, that is the main problem with the CC0 which I'd like to see corrected 
before the OSI evaluates it, and is why-- although I believe the CC0 is 
OSD-compliant-- I gave a -1 to approving it at this moment.

However, the language it includes for resolving contradictions gives the CC0 
Statement of Purpose priority over clause 4a:

"Should any part of the License for any reason be judged legally invalid or 
ineffective under applicable law, such partial invalidity or ineffectiveness 
shall not invalidate the remainder of the License, and in such case Affirmer 
hereby affirms that he or she will not (i) exercise any of his or her 
remaining Copyright and Related Rights in the Work or (ii) assert any 
associated claims and causes of action with respect to the Work, in either 
case contrary to Affirmer's express Statement of Purpose."

In other words, I don't think CC0's clause 4a is effective with regard to a 
CC0 Work, or anything derived from a CC0 Work.  However, the Affirmer would 
still retain patent and trademark rights (and other rights, perhaps) with 
regard to anything else.

> 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.

If you want to claim the WTF license does not provide any patent grants, well, 
I would agree.

However, the MIT license invokes a number of key phrases from US patent law: 
"to deal in the Software without restriction, including without limitation the 
rights to use, copy, modify, merge, publish, distribute, sublicense, and/or 
sell copies of the Software".  That is an explicit grant of rights governed by 
patent law, even if the MIT license doesn't use the word "patent" anywhere in 
the license text.

> 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.

How is CC0 agnostic?  I think the CC0 license, by offering "royalty-free" etc 
(see [1] above) permission to the Work, is providing such rights to the public 
at large that would be governed by patent law, very much as the MIT license does.

> 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.

Indeed, I appreciate the distinction you are trying to draw, and have tried to 
respond accordingly....

Regards,
-- 
-Chuck