[License-review] Approval: BSD + Patent License

Fri Jan 15 14:59:18 UTC 2016

1) So the intent of the statement:

"where such license applies only to those patent claims licensable by such
copyright holder or contributor that are necessarily infringed by:”

is what?  I have a patent. I am precluded by an previous agreement so I
cannot license it.  Is this still a license I must grant?

Thinking about it it strikes me the easiest way around the issue is to
form some other legal entity, transfer the copyright to it and then do the
open source release from there.  That entity holds no patents that the
organization is not willing to give away either by design or by accident.

2) Would you be willing to add "No other express or implied licenses are
granted.”?  That seems to be a better statement than your hardware one.

On 1/15/16, 12:18 AM, "License-review on behalf of Smith, McCoy"
<license-review-bounces at opensource.org on behalf of mccoy.smith at intel.com>
wrote:

>It appears (although it's not entirely clear) that the FSF considers that
>particular provision of ECLv2 to render it GPLv2 incompatible:
>http://www.gnu.org/licenses/license-list.html#ECL2.0 .  ("the scope of
>the patent license has changed so that when an organization's employee
>works on a project, the organization does not have to license all of its
>patents to recipients. This patent license and the indemnification clause
>in section 9 make this license incompatible with GPLv2")
>Since GPLv2 compatibility is a goal of this license, adding such a
>provision would defeat that goal (or at least, raise questions as to
>whether it is GPLv2 compatible).
>
>
>-----Original Message-----
>From: License-review [mailto:license-review-bounces at opensource.org] On
>Behalf Of Tzeng, Nigel H.
>Sent: Thursday, January 14, 2016 8:16 PM
>To: License submissions for OSI review
>Cc: Goepel, James E.
>Subject: Re: [License-review] Approval: BSD + Patent License
>
>McCoy,
>
>Would the statement:
>
>"where such license applies only to those patent claims licensable by
>such copyright holder or contributor that are necessarily infringed by:²
>
>mean that where a copyright holder is precluded from licensing a patent
>because of existing grant and research funding agreements that there is
>no explicit patent license?
>
>The question is derived from the language of ECL V2
>(http://opensource.org/licenses/ECL-2.0) that limits the Apache patent
>license with the following text:
>
>"Any patent license granted hereby with respect to contributions by an
>individual employed by an institution or organization is limited to
>patent claims where the individual that is the author of the Work is also
>the inventor of the patent claims licensed, and where the organization or
>institution has the right to grant such license under applicable grant
>and research funding agreements. No other express or implied licenses are
>granted."
>
>
>Would it be acceptable to add "No other express or implied licenses are
>granted.² after the statement "No hardware per se is licensed hereunder.²?
>
>I presume that the limitation that the only patent licenses explicitly
>granted are for patents that were invented by the authors of the work to
>be too limiting for general use.
>
>Did you intend that language to allow this scenario?  If so it would
>address some of the concerns of research institutions with respect to
>implicit and explicit patent grants in open source licenses conflicting
>with grant agreements.
>
>Regards,
>
>Nigel
>
>Ob Dis: IANAL and not representing my employer in any fashion.
>
>
>
>On 1/13/16, 1:57 PM, "License-review on behalf of Smith, McCoy"
><license-review-bounces at opensource.org on behalf of mccoy.smith at intel.com>
>wrote:
>
>>OSI License Submission for BSD + Patent License
>>
>>The attached license is submitted to the Open Source Initiative for
>>approval as an OSI-approved Open Source license.
>>
>>RATIONALE:
>>
>>This license has been created to address a specific problem that has
>>been encountered with existing licenses:  the desire of certain
>>organizations to have a simple permissive license that is compatible
>>with the GNU General Public License (GPL), version 2, but which also
>>has an express patent grant included.
>>
>>PROLIFERATION CATEGORY:
>>
>>This license should be categorized as a ³Special Purpose License,² or,
>>alternatively, as an approved variant of the BSD 2-clause license.
>>
>>DISTINGUISHING FROM OTHER OSI-APPROVED LICENSES:
>>
>>The BSD 2-clause license is currently categorized as one of the
>>³Licenses that are popular and widely used or with strong communities.²
>>The BSD 2-clause license is also considered by the Free Software
>>Foundation (FSF) to be compatible with both GPLv2 and GPLv3.  However,
>>some organizations  particularly those with large or valuable patent
>>portfolios  are reluctant to use the BSD (and MIT) licenses because of
>>the lack of an express patent license grant in those licenses.  Because
>>of that issue, many patent holders prefer to use the Apache 2.0 license
>>when they wish to license code permissively, since it has an express,
>>and well-written, patent license grant.  Unfortunately, the FSF has
>>determined that the Apache 2.0 license is not compatible with GPLv2
>>because ³it has some requirements that are not in that GPL version.
>>These include certain patent termination and indemnification
>>provisions.²
>>
>>There is currently only one GPLv2-compatible permissive license that
>>includes an express patent license  the relatively-recently approved
>>Universal Permissive License (UPL).  In the past, this has created a
>>problem for some authors wishing to license their code permissively,
>>but also including an express patent license grant, and also having the
>>license be GPLv2 compatible so that users have the ability to integrate
>>that code into GPLv2-licensed code (including, for example, the Linux
>>kernel).  Although the UPL provides such an option, we believe that
>>users will still wish to have a license with more familiar, and widely
>>accepted licensing language (like a BSD-variant) that solves the issue
>>of an express patent grant and GPLv2 compatibility.
>>
>>We believe that this license is non-duplicative (for the reasons set
>>forth above), as it solves an issue all but one OSI-approved license
>>solves (permissive, express patent license grant, GPLv2 compatibility).
>>The license itself is a combination of language from the BSD 2-clause
>>license, the Apache 2.0 license, and the Eclipse Public License (all of
>>which are already OSI-approved, and all of which are in the category of
>>³Licenses that are popular and widely used or with strong communities²).
>>It therefore should meet all the criteria of the OSD.
>>
>>LEGAL REVIEW:
>>
>>The text of the license is reproduced below.  We have also included an
>>attached mark-up of the license showing where the language comes from
>>BSD 2-clause, Apache 2.0 and Eclipse.  The patent grant from Apache 2.0
>>and Eclipse were used because the combination of the two was more
>>tightly-worded and fit better with the existing language in the BSD
>>2-clause license.  Note that we have removed the ³patent
>>termination/retaliation² language from both of these licenses because
>>this language is one of the reasons why Apache 2.0 has been found to be
>>incompatible with GPLv2.
>>
>>In keeping with the License Approval Process submission guidelines:
>>
>>	1. We have read the Open Source Definition and ensured that this
>>license complies with it (and in fact, this license is an amalgamation
>>of already OSI-approved licenses).
>>	2. This is an Approval submission, as this is a new license (albeit
>>derived from existing OSI-approved licenses).
>>	3. We have appropriate standing to submit this request, as this
>>license was created by us (again, derived from existing OSI-approved
>>licenses).
>>	4. We are subscribed to license-review.
>>	5. This communication is our  formal request to license-review.
>>
>>Please approve this license for inclusion on the OSI approved license
>>list.
>>
>>McCoy Smith
>>Intel Corporation
>>Legal & Corporate Affairs
>>
>>
>>PLAINTEXT COPY OF LICENSE BELOW:
>>
>>=======================================================================
>>=== 
>>=======================================================================
>>=== =============================================
>>Copyright (c) <YEAR>, <COPYRIGHT HOLDERS>
>>
>>Redistribution and use in source and binary forms, with or without
>>modification, are permitted provided that the following conditions are
>>met:
>>
>>1.	Redistributions of source code must retain the above copyright notice,
>>this list of conditions and the following disclaimer.
>>2.	Redistributions in binary form must reproduce the above copyright
>>notice, this list of conditions and the following disclaimer in the
>>documentation and/or other materials provided with the distribution.
>>
>>Each copyright holder and contributor hereby grants to those exercising
>>copyright rights under this license a perpetual, worldwide,
>>non-exclusive, no-charge, royalty-free, irrevocable patent license to
>>make, have made, use, offer to sell, sell, import, and otherwise
>>transfer their copyrighted material (whether in source code or binary
>>form) made available under this license, where such license applies
>>only to those patent claims licensable by such copyright holder or
>>contributor that are necessarily infringed by:
>>
>>(a)  their copyrighted material alone; or
>>(b) by combination of their copyrighted material with the work of
>>authorship to which such copyrighted material was added by such
>>copyright holder or contributor, if, at the time the copyrighted
>>material was added, such addition causes such combination to be covered
>>by the patent claim. The patent license shall not apply to any other
>>combinations which include their copyrighted material.
>>
>>No hardware per se is licensed hereunder.
>>
>>THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS
>>IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
>>TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
>>PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT
>>HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
>>SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
>>LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE,
>>DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY
>>THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
>>(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE
>>OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
>>
>
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