[License-review] [Non-DoD Source] Re: For Approval: W3C Software and Document License

Fri Aug 11 18:11:48 UTC 2017

As someone who is advocating for using CC0 on Government code that doesn't 
have copyright attached, I agree with Carlo about the patent issues.  ARL's 
official policy handles the patent issue by waving patent rights which covers 
the hole left by CC0 (see 
https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions#433214A2C17C11E6952E003EE1B763F8). 
We've got a series of bugs filed to try to improve on that, but I for one 
agree that patent issues are a concern.

That said, I do understand that some third party may hold patent rights that 
can be infringed upon.  That is not something that any license will be able to 
cover completely, and would likely end in litigation of some kind.

Thanks,
Cem Karan

> -----Original Message-----
> From: License-review [mailto:license-review-bounces at opensource.org] On 
> Behalf Of Carlo
> Sent: Friday, August 11, 2017 1:18 PM
> To: license-review at opensource.org
> Subject: [Non-DoD Source] Re: [License-review] For Approval: W3C Software 
> and Document License
>
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> ________________________________
>
>
>
> Dear Nigel,
>
> I will stop repeating the same comment (which I myself received firstly, by 
> the way) when this nonsense of considering "open source" a
> copyright-only licensing issue will come to an end, or, more appropriately, 
> when this larger and graver nonsense of applying patents to
> software would not be gone for good.
>
> A legal text must be interpreted in the situation where it applies. If the 
> scenario changes, its interpretation must change. So be for the
> OSD, if the "evolutionary" interpretation is not defeated an insurmountable 
> wording therein. This is not the case. My reading of the OSD is
> perfectly compatible with the text. No need whatsoever to change the OSD. 
> The OSD says "the *distribution terms* of open source must
> comply". Not "the distribution terms under copyright". The distribution 
> terms. Period.
>
> How come if you have two sets of rights on the software you yourself make or 
> modify and distribute, you may  sanely say "take it, this is
> open open source", and when someone starts using it you say "hey, but not 
> THAT open, here's a license, here's a bill for royalties, if you
> want to continue using it". "But you have a license!" "Ah-ah! A license on 
> copyright, not a license on patents!"
>
> Where is the "without the need for execution of an additional license"?
>
> Of course, if somebody else come forward with their own patent for software 
> they have not created, this would be a problem of the legal
> system, not of the license. But if the license allows a "gotcha" situation 
> by the same developer, sorry, that's a problem of the license.
>
> Then you can do as you please, and call "open source" a legal instrument 
> that only people having signed a patent license and pay royalties
> for it can legally use, modify, distribute. I will still retain the right to 
> think and say it's a totally foolish and self-defeating position. Will I be
> alone or just with the minority? Too bad!
>
> Brexit showed us that the decision of the majority not necessarily is the 
> most sane, never mind the most informed one. Good luck!
>
> All the best,
>
> Carlo
>
>
>
> On 11/08/2017 17:51, Tzeng, Nigel H. wrote:
>
>
> 	Oops.
>
> 	My comment is that there is no red line for patents in the OSD.
>
> 	Either get the necessary consensus to change the OSD or stop debating this 
> in every single Open Source license submission and
> holding them up.
>
> 	The FACT remains that non-OSI approved licenses, namely CC0, are considered 
> Open Source by many open source practioners so
> your opinion is not necessarily the majority view and certainly not the 
> universal view.
>
> 	From: Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu < 
> Caution-mailto:Nigel.Tzeng at jhuapl.edu > >
> 	Date: Friday, Aug 11, 2017, 11:45 AM
> 	To: License submissions for OSI review <license-review at opensource.org < 
> Caution-mailto:license-review at opensource.org > >
> 	Subject: Re: [License-review] For Approval: W3C Software and Document 
> License
>
>
>
> 		From: Carlo Piana <carlo at piana.eu < Caution-mailto:carlo at piana.eu > >
> 		Date: Thursday, Aug 10, 2017, 6:08 AM
> 		To: license-review at opensource.org < 
> Caution-mailto:license-review at opensource.org > 
> <license-review at opensource.org
> < Caution-mailto:license-review at opensource.org > >
> 		Subject: Re: [License-review] For Approval: W3C Software and Document 
> License
>
>
> 		On 09/08/2017 21:15,
>
> 		The scope of a FOSS license is to give permission to do things with
> 		software. They are *historically* conceived as copyright licenses
> 		because *historically* that was what drafters understood it was the
> 		regime under which rights had to be conferred on software.
>
> 		If different rights insist on software, the owner of those rights who
> 		purports to give permission *must* give those permission under all the
> 		rights she may have, or the openness test would miserably fail.
>
> 		Otherwise it is like opening one lock of a door, with the other
> 		remaining closed. The door will not open. So if the license is a key,
> 		you cannot just say "this key will conditionally open all the copyright
> 		locks on my doors" and claim that the doors will be "open doors". If
> 		there are patent locks of yours, the doors will remain shut. [0]
>
> 		A license which only gives copyright licenses but refuses to do so for
> 		patents is not an open source license in my and many others' opinion.
> 		It's a public license, it is valid, it has some scope, but it's not open
> 		source.
>
> 		I invite OSI to take a stance once for all as to this conceptual 
> ambiguity.
>
>
>
>
>
>
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