[License-review] Submitting CC0 for OSI approval

Russ Nelson nelson at crynwr.com
Sun Feb 19 00:14:57 UTC 2012

Henrik Ingo writes:
 > In this light it is interesting to note that the OSD also does not
 > mention any requirement that a receiver of a piece of software or
 > source code should have the right to use it - it is likewise mostly
 > concerned with distribution, publication and modification. It is only
 > in practice we see that all open source licenses also allow you to
 > *use* the software.

Yes, let's all thank Bruce for that. (If Bruce wants credit, he has to
take blame, too.) We have finessed our way around that by pointing out
that the OSD covers distribution, and that use is implicit in
possession of the software, and is explicit in U.S. law.

 > It seems to me this is an opportunity
 >  - for the OSI to affirm the meaning of #7 in the OSD (to cover patents)

No. That doesn't even BEGIN to deal with patents. With a copyright, A
wrote the code, has copyright, licenses it to B, and B is free to do
anything with the code whatsoever without needing to consult with
A. ONLY if B wants to redistribute it do they need to look at the
license they got from A. This is what the Open Source Definition does
-- it guarantees that we have looked at the license and we believe
that the license has those attributes.

We can't say anywhere NEAR as much for someone in a regime that allows
software patents (which is a small fraction of the world,
fortunately.) Even if we required that A indemnify B against patents
owned by A, we can't say anything about all the other patents.

If the OSD covered patents, it would only be a whitewash over the real
problem. It would be irresponsible for us to pretend that we are
creating any benefit to B.  There are 6 billion people on the Earth,
and with an OSD that requires patent indemnification against lawsuits
by A, only 5,999,999,999 of them can sue you for patent infringement.

And, the final killer is that CC0 is an attempt to put software into
the public domain, or come as near as possible. So, in a country where
CC0 is valid law, once you see the CC0 on a piece of code, you don't
have to reproduce the CC0 anymore. Now, code that is in the public
domain is not licensed. There is no copyright holder TO license the
code. With no copyright license, there is no patent license.

A patent license is antithetical to a public domain declaration.

 >  - for the OSI to affirm that an open source license must allow the
 > receiver to "use" the software

That's a separate issue. The OSD deals with copyright licensing,
period. Since copyright (at least in the US; probably in all Berne
Convention countries; and probably everywhere anyway) never covers
use, we would have to start saying that open source licenses are
contracts. Some people (and lawyers) say that a copyright license IS a
contract. But in order for that to be the case, open source licensing
would have to dramatically change, because right now, if A writes
code, publishes it, B downloads it, and shares it with C, then A has
NO RELATION to C and C has not entered into a contract with B.

Can you see what a rathole that ends up being?

--my blog is at    http://blog.russnelson.com
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