[License-review] Approval: BSD + Patent License

Mon Mar 13 20:41:35 UTC 2017

Hi, McCoy-

One question: "irrevocable (except as stated in this section)" - I don't
see any possible revocation clause in that section (paragraph?). Did you
intend something like "irrevocable (unless the license's conditions are
breached)"?

Luis

On Sun, Mar 12, 2017 at 5:19 PM Smith, McCoy <mccoy.smith at intel.com> wrote:

> All:
>
> It has been over a year since the last discussion on this proposal;  I
> would like to revive it again in view of the following:
>
> 1.  I have gotten some feedback from the FSF on the license.  At the time
> of initial submission of the license, several on the list suggested that,
> given the special purpose of this license -- to provide a version of the
> BSD license that was both GPLv2 compatible and included an express patent
> license, I should get confirmation from the FSF that it is indeed GPLv2
> compatible.  I have heard from the FSF and they have confirmed the present
> draft [appended and discussed below] is GPLv2 compatible.
>
> 2.  I have also gotten feedback from others on the last draft (on-list,
> and privately), as well as from the FSF,  which has resulted in me
> reconsidering the last draft and tightening up and/or altering the text
> somewhat (not to change the substance, just to change ambiguities or other
> drafting issues).  So the latest version (reproduced below, as well as
> appended in color-coded format to show the origin of the text) is in this
> e-mail.
>
> A few drafting notes on this version:
>
> A.  There are two provisions in this draft that are in square brackets
> ([]).  Those represent provisions that I have added in response to the
> comments of others on this list, but which I haven't yet decided should be
> in the final version.  The first provision (that the licensed patent claims
> are those "already acquired or hereafter acquired") comes from GPLv3 -- but
> is not in any of the licenses (BSD, Apache, Eclipse) from which my license
> is derived.  That provision is intended to make explicit that the license
> is intended to cover patents acquired by the licensor after the grant has
> been made.  I think that that is inherent in the grant language of Apache
> and Eclipse (and the Apache FAQs say it is explicitly), but the language
> does have the benefit of making it explicit and part of the license text
> itself.  The second provision is an explicit disclaimer of all other
> licenses beyond those expressly granted.  That language comes from Eclipse,
> with modification.  I'm now of the mind to keep in the bracketed
> provisions, given that I think being express/explicit is better, even if
> there is an argument that these provisions are somewhat unnecessary given
> the unbracketed language already covers the concepts.  I'll leave these
> provisions open for additional comment by anyone who wants to convince me
> there is a good reason to leave them out.
>
> B.  The patent license grant is on behalf of "copyright holders and
> contributors."  I have used that language as a result of its existing use
> in the disclaimer section of 2-clause BSD, which I interpret to be intended
> to cover those who make copyrightable contributions as well as those who
> might make contributions not subject to copyright (an issue discussed in
> some depth in separate threads about military and/or government open source
> licensing, particularly those not subject to US copyright rights).  In
> order to make that distinction more clear, the patent clause now has an
> embedded definition of "Contribution(s)" which intended to now capture both
> types of contributions -- copyrightable and non-copyrightable.  Although I
> tend to disfavor embedded definitions in a license of this type (since BSD
> is free of them), this was one definition that seemed to be needed as a
> point of clarity.
>
> Further comments are welcome.  Now that the GPLv2 compatibility issue is
> resolved, I'll leave this one open for additional comments from the member
> list for a bit,  in case anyone sees further drafting improvements they'd
> like to suggest -- or express objections as to why the license itself
> should not be approved.  I will then indicate that the text is finalized
> and ask for Board approval to add to the OSI list.
>
> McCoy Smith
> Law & Policy Group
> Intel Corporation
>
> License text reproduced 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.
>
> Subject to the terms and conditions of this license, each copyright holder
> and contributor hereby grants to those receiving rights under this license
> a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable
> (except as stated in this section) patent license to make, have made, use,
> offer to sell, sell, import, and otherwise transfer this software, where
> such license applies only to those patent claims [, already acquired or
> hereafter acquired,] licensable by such copyright holder or contributor
> that are necessarily infringed by:
>
> (a) their Contribution(s) (the licensed copyrights of copyright holders
> and non-copyrightable additions of contributors, in source or binary form)
> alone; or
>
> (b) combination of their Contribution(s) with the work of authorship to
> which such Contribution(s) was added by such copyright holder or
> contributor, if, at the time the Contribution is added, such addition
> causes such combination to be necessarily infringed. The patent license
> shall not apply to any other combinations which include the Contribution.
>
> [Except as expressly stated above, no rights or licenses from any
> copyright holder or contributor is granted under this license, whether
> expressly, by implication, estoppel or otherwise.]
>
> DISCLAIMER
> 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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-- 

*Luis Villa: Open Law and Strategy <http://lu.is>*
*+1-415-938-4552*
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