[License-discuss] comprehensiveness (or not) of the OSI-approved list

[Nicholas Matthew Neft Weinstock]

Agreed.  I've been saying for a while (since I started participating on this board) that there needs to be clear recognition of the difference between the LICENSE and the PROGRAM, and make sure we're talking about the right thing.

Copyright ownership is more straightforward: Only one person is the owner of the Copyright covering the code, the person who created that code.  So if all contributors grant a Copyright license, you can reliably claim that the program's license gives all the Copyright rights a user needs.

But Patent ownership isn't like that.  It's not based on who created the code, it's based on who first invented the functionality.  If a program has functionality covered by a patent owned by a completely unrelated 3rd party, the program's license doesn't give all the Patent rights a user needs.  At best, you could claim that the program's license gives all the Patent rights FROM THE IDENTIFIED CONTRIBUTORS that a user needs.

In reviewing the OSD, some sections explicitly reference the license, such as section 3, while others explicitly reference the program, such as section 2.  It's interesting to note that section 7, the one that Richard identified as relevant to the CC0 discussion, says "The rights attached to the program..." which isn't clearly either one.

Thanks,
Nicholas Weinstock

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From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of John Cowan
Sent: Thursday, May 23, 2019 5:06 AM
To: license-discuss at lists.opensource.org
Subject: Re: [License-discuss] comprehensiveness (or not) of the OSI-approved list



Even if this is true (and I don't yet concede it), the lack of a patent
release from the software author(s) isn't the biggest threat.
Anyone who releases code under an open-source license
probably isn't going to turn around and sue you for patent
infringement, though it's certainly possible.  The deep threat
comes from third parties, which is a risk that neither ther the
licensor nor the licensee can reasonably mitigate.
 
If we accept that patent infringement makes a piece of
software not open source, we are in this position:  if someone asks
"Is program X open source?" our only replies are "Definitely not"
and "Maybe."  A classification like that isn't very useful.  It's more
meaningful IMO to say that such a program *is* open source and
accept that not all open-source software is usable everywhere.