For approval: MXM Public license

Lawrence Rosen lrosen at rosenlaw.com
Fri Apr 10 17:49:16 UTC 2009


Russ Nelson challenged:
> > If anybody thought that the BSD *didn't* come with an implicit patent
> > license, then somebody would have at least *asserted* "You have no
> > patent license".  And yet nobody has.
> >
> > Easy to prove me wrong.

John Cowan countered:
> It was, indeed.  Less than five minutes of googling.


John, to be fair, nobody has asserted *in court* that the BSD didn't come
with an implicit patent license. That would take an actual patent and
actually infringing software. Courts don't conjecture.

What Roy Fielding asserted in some email archives, while fascinating, is
about as authoritative as my own emails on this topic and worth less than
the paper it is printed on. (BTW and FWIW, I actually agree with Roy!)

There is a good argument to be made that patent licenses NOWADAYS ought to
be explicit rather than implicit, regardless of our sloppy FOSS licenses in
the past. Courts prefer to read words actually written rather than words
that are divined from intention of the parties or from some purely legal
construct based upon public policy. 

That is why it frustrates me--as a lawyer--that we continue to recommend the
BSD license to our community. People needn't continue to argue about the
effect of the BSD license on patents when there are perfectly good licenses
available for our use that don't suffer that particular ambiguity.

Perhaps this discussion ought to be moved to the license-proliferation-2
list?

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen




> -----Original Message-----
> From: John Cowan [mailto:cowan at ccil.org]
> Sent: Friday, April 10, 2009 10:04 AM
> To: Russ Nelson
> Cc: License Review
> Subject: Re: For approval: MXM Public license
> 
> Russ Nelson scripsit:
> 
> > If anybody thought that the BSD *didn't* come with an implicit patent
> > license, then somebody would have at least *asserted* "You have no
> > patent license".  And yet nobody has.
> 
> At http://mail-archives.apache.org/mod_mbox/archive-
> license/200311.mbox/<B839DF64-1625-11D8-9F2A-000393753936 at apache.org> ,
> Roy Fielding wrote:
> 
> # Several comments are to the effect that the patent license [clause
> # in Apache 2.0] cannot be terminated.  There is no such restriction
> # in the DFSG.  Furthermore, the GPL[v2], BSD, and other licenses that
> # Debian claims are free have no patent license grant at all, which is
> # equivalent to a terminated license. If the proposed 2.0 license is
> # non-free, then none of your example licenses are free either.
> 
> > Easy to prove me wrong.
> 
> It was, indeed.  Less than five minutes of googling.
> 
> --
> I marvel at the creature: so secret and         John Cowan
> so sly as he is, to come sporting in the pool   cowan at ccil.org
> before our very window.  Does he think that     http://www.ccil.org/~cowan
> Men sleep without watch all night?




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