[License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]

[Carlo Piana]

On 05/03/2012 20:15, Chuck Swiger wrote:
> 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. 


I think this misunderstanding is at the foundation of our disagreement.
This is NOT a clause that resolves contradictions. This is standard
language in any agreement I know, and it is called "severability clause"
[0], i.e., it safeguards an agreement from being declared null and void
in case one or more provisions are null and void.

I don't recognize in the cited clause anything that detracts from the
clear provision of 4.a, because it still covers only "Copyright and
Related Rights in the Work", which is has a very precise legal meaning,
and this is consistent with the Statement of Purposes that only speaks
about "Copyright and Related Rights in the Work."

I see this is particularly troublesome since even people otherwise
conversant with the OS licensing is misguided by the actual language.

Thus, to me, the only discrimen to decide whether this license is to be
approved is to decide whether, as Brendan has put it clearly, if the OSD
relates to all the rights the licensor controls or to copyright only.
This is the objection I received when I proposed the MXM and that
convinced me.

Russ has a point when he says that patent rights are negative in nature
and nobody can guarantee that you can use the software under patent
rights, this is one of the many shortcomings of the patent system
compared to the copyright system (although also the copyright, in this
regard, is a negative right, only it's easier to know whether you
control the entirety or only a part of it).

However, to me Brendan (and those who have affirmed the same principle
earlier on) is right. I don't believe that the OSD should limit itself
to copyright, allowing the licensor to give with one hand and retain
with the other. All modern licenses (contrary to MXM and CC0) say that
both the initial licensor and any contributor give permission to use
under copyright and patent they control. Of course they cannot give
permission concerning something they cannot control.

With best regards,

Carlo


[0] http://en.wikipedia.org/wiki/Severability