[License-review] MXM compared to CC0

Chuck Swiger chuck at codefab.com
Mon Mar 5 20:58:01 UTC 2012

On 3/5/2012 3:18 PM, John Cowan wrote:
> Chuck Swiger scripsit:
>> 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.
> That's not possible.  The most that can be achieved is that the author
> of the software must not prevent users from running it.  Because patent
> rights are negative (the right to forbid use, rather than the right
> to use), no one can reliably deliver the right to use in a wide-open
> software patent regime.

I see the distinction you are trying to draw, but you discount the first-sale 
doctrine and patent exhaustion.  Even the worst patent trolls [1] generally 
avoid suing end-users of a product, although if the Quanta v. LG Electronics 
decision went the other way, things might well be otherwise.

In any event, a CC0 Affirmer cannot grant rights which they do not possess.

And we can't make OSD-compliance and OSI license approval decisions depend 
upon the licensor granting rights which they do not hold.

>> 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.
> Either that, or the presence of "use" and "sell" mean nothing whatever,
> since lawful owners of copies already have those rights.



[1]: I'm thinking of Innovatio or Rambus-- who are undoubtedly lurking under 
the bridge over the River Lethe-- even they aren't going so far as to sue 
end-users who have a wireless laptop or which uses memory that implemented a 
JEDEC standard.

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