[License-review] Request for consultation with CC on patent issue

Chuck Swiger chuck at codefab.com
Tue Feb 21 22:31:57 UTC 2012

On Feb 21, 2012, at 1:08 PM, Richard Fontana wrote:
> On Tue, Feb 21, 2012 at 12:50:10PM -0800, Chuck Swiger wrote:
>> The Affirmer may indeed retain patent rights, if any.  But they've also promised not to make a claim with regard to the Work they've placed into the public domain and/or under the CC0 license clause 3 fallback.
> According to the CC0 FAQ, the Affirmer hasn't promised not to make a
> *trademark* claim with regard to the Work, which is all well and
> good. But it then follows that the Affirmer also hasn't promised not
> to assert a patent claim, right? Because CC0 4a treats trademark and
> patent in parallel. 

I agree that they treat trademark and patent in parallel.
While I see the following commentary in the CC0 FAQ:

"Can I control how my work is being used once I publish it using CC0?

Not really. CC0 is about achieving the effect of placing works in the public domain. Just like anything already in the public domain today, anybody will be able to use your work for any purpose, even in ways you may find distasteful or objectionable. They can also make money off of your work, and they may give you credit or they may not. One aspect you retain control over, however, is the use of the work by others with your trademarks. CC0 does not surrender any trademark rights you have. If others want to associate your trademark with a work you distribute under CC0, they need to ask your permission first as required by trademark law."

However, nominative use of a trademark-- "trademark fair use" here in the US-- *doesn't* require any such permission.  For that matter, something which actually *is* the trademarked item (since it originally came from the trademark holder) would not be an infringement of that mark in the first place.

If the upshot is that someone who changes a CC0'ed Work must identify that it was originally SomeWork(tm) [or (R)], and has since been modified that Work by permission by the CC0 terms, well, that seems to be OK per OSD #4 "Integrity of The Author's Source Code".


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