[License-review] avoid gray areas?

Josh Berkus josh at postgresql.org
Fri Mar 9 00:57:49 UTC 2012

Russ, All,

> No, I'm arguing that if we should decline the CC0 because code
> licensed under it doesn't come with a patent license, then we should
> deprecate the BSD (&etc) because it doesn't come with a patent
> license. DiBona agreed with this statement.

I don't see the two cases as equivalent for a few reasons:

Simplicity: BSD/MIT etc. contain no patent provisions as they do not
contain a lot of various clauses; one of the specific goals of those
licenses is simplicity.  CC0 does not have this quality.

Explicitness: BSD/MIT is mum on the issue of patent grants, leaving the
idea open that the explicit grant of right to copy could be an implicit
limited patent grant, or at least grounds for an entrapment defense.  In
other words, a patent owner asserting patent rights to code they had
willingly given away under the BSD license would, at least to this
layman's eyes, be in a compromised position.  CC0 explicitly denies
patent grants of any kind, making it completely clear that no patent
grant of any kind is implied.

Intent: BSD/MIT were not composed with the idea of not offering patent
rights; at the time, nobody was patenting software.  Most of the new
licenses we see today *do* address patent rights.  In contrast, the CC0
goes out of its way to deny patent rights for no reason which has been
adequately explained by the authors.

Message: By having explicit language around not granting patent rights
of any kind, the CC0 sends the message that it is OK, in fact
encouraged, to booby-trap free stuff through stealth patent attacks.

> I'm not sure that "our public" is ready to have the BSD license be
> deprecated. I could be wrong, of course.

I think a sincere effort by the OSI to create a simple, liberal license
which covered the patent issue as a successor to BSD might be well
received, actually.  I know that if we could go back in time and rewrite
The PostgreSQL License, we'd put a couple lines about patents in there.

Last I checked, the OSD was NOT about adhering strictly to copyright
law. The OSD is about protecting user's access to the source code.
Rubber-stamping a bad license just because it comes from Creative
Commons would be a violation of the spirit of the OSD, and an
invalidation of OSI's mission.

--Josh Berkus

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