[License-review] A request for checking the review status of Mulan OWLs v1

[Pamela Chestek]

Don't you think that the a disclaimer of a patent grant is a violation 
of several points of the OSD? Unfortunately the OSD doesn't expressly 
memorialize freedom to run, I suspect because that's kind of the whole 
point, missed the forest for the trees. Nevertheless, I believe the 
express withholding of a patent license is a failure to ensure software 
freedom, which is also a current requirement, because there is no 
freedom to run. As to the OSD,

OSD 6 - No Discrimination Against Fields of Endeavor - it would be 
discrimination against the patented field of endeavor to withhold the 
patent grant.
OSD 7 - Distribution of License: "The rights attached to the program 
must apply to all to whom the program is redistributed without the need 
for execution of an additional license by those parties." The 
withholding of a patent license means that an additional patent license 
must be executed.
OSD 8 - License Must Not Be Specific to a Product - This is the inverse 
of OSD 6, without a patent grant, the license is specific to the 
non-patented field of use (if any).

IIRC, the CERN OHLs were written specifically with software in mind, so 
that one license could be applied to the combination product of hardware 
and software. That benefit was why it was submitted to the OSI and we 
considered it. So it's not just a hardware license, but also by design 
could be used as a stand alone software license (which was no mean trick 
in the drafting). On my review, I walked through it as only a software 
license to make sure it didn't have any unintended consequences when 
applied that way.

Pam

Pamela S. Chestek
Chestek Legal
300 Fayetteville Street
Unit 2492
Raleigh, NC 27602
pamela at chesteklegal.com
(919) 800-8033
www.chesteklegal.com

On 8/15/2023 8:22 AM, McCoy Smith wrote:
> FWIW, I agree that licenses that disclaim patent grants are not approvable. That's the lesson of CC. I continue to think that the OSI should articulate that as a hard-and-fast rule about approvable licenses so that future submitters know that that's a requirement for any submitted license. There's an underlying issue within that about whether a license that doesn't disclaim patent licenses but doesn't articulate any express patent license is approvable (at least, going forward) which probably also should be addressed (and explained wrt to the approved licenses that do do that).
>
> I'm not sure I agree that a "content" license is not approvable. Not sure, but don't think, that was an impediment to a consideration of CC. Also, there are licenses already on the list that are not specifically limited to software and could be equally applied to content. For example, the Fair license: https://opensource.org/license/fair/  They've also approved the CERN OHLs.  I think if OSI is going to limit itself to only "software" licenses, it need to make that policy decision and make it clear, and perhaps articulate how one distinguishes between a "software" (or "primarily software") and a "non-software" (or "primarily non-software") license, keeping in mind that software licenses have and are being applied to non-software, and vice versa. I suppose a "content" license that expressly states that it must not or cannot be used for software probably shouldn't be approved, but absent that I see no reason why it shouldn't be approved if it could be used with software equally with content.
>
>
>> -----Original Message-----
>> From: License-review <license-review-bounces at lists.opensource.org> On
>> Behalf Of Pamela Chestek
>> Sent: Tuesday, August 15, 2023 7:46 AM
>> To: license-review at lists.opensource.org
>> Subject: Re: [License-review] A request for checking the review status of
>> Mulan OWLs v1
>>
>>
>> On 8/14/2023 5:31 PM, Josh Berkus wrote:
>>> On 8/11/23 09:56, Pamela Chestek wrote:
>>>> The context of the question is whether to approve the submitted Mulan
>>>> OWL licenses, so the discussion needs to be on license-review. It's
>>>> specifically whether we should approve these licenses. The only
>>>> issues that anyone mentioned were that they were content licenses
>>>> (and I raised the patent issue).
>>> Those are sufficient issues, no?  I mean, they're not going to change
>>> these from being content licenses, and right now we have no idea how
>>> to approve content licenses.
>>>
>> I think so, it's only that the response on the list has been somewhat
>> equivocal, so I want to make sure everyone is in agreement.
>>
>> Pam
>>
>> Pamela S. Chestek
>> Chair, License Committee
>> Open Source Initiative
>>
>>
>>
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