[Moving from license-review, where this no longer seems topical, to license-discuss.]
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > On 3/7/12 8:41 PM, "Russ Nelson" <nel...@crynwr.com> wrote: > >(I think we're ALL agreed that patents which are not freely licensed > >-- at least for open source software -- are not compatible with open > >source software, right?) > > No. I say no is because I see explicit trademark and patent rights > exclusion from other open commons licenses for data, etc and even code > when you count CC0. Pardon my interjecting, but I think you may have misread Russ's point. I _believe_ he was saying that, if a codebase is encumbered by patents not available royalty-free (e.g., only under 'RAND' terms), then the software in question ends up being effectively proprietary in jurisdictions where the patent is enforceable, irrespective of the software's licence -- as long as the software continues to implement the patented method, anyway: Derivatives that no longer do that would be open source if the licensing and other relevant facts permit. That is, I _believe_ Russ was reminding us all of a fact sometimes forgotten, that suitable licensing is a necessary but not sufficient requirement for open source, and always has been: E.g., if someone releases a binary codebase and claim it's BSD, you might reasonably believe it's open source -- but then you might notice that the source has for whatever reason never appeared or is no longer findable. Ergo, effectively proprietary, despite licensing. A week later, someone finds a matching source tarball: You now reasonably believe it's open source again. A week more, and someone finds an encumbering patent for your jurisdiction that isn't available royalty-free: effectively proprietary again. Trademark encumbrance, by contrast, is a red herring, as it never blocks any usage or direction of development, and only affects branding details. (See: Iceweasel, CentOS, Sawfish window manager.) I bowed out of upthread discussion in part because it was difficult to bring clarity to it, in the face of (pardon my wording) a great deal of interpersonal noise and advocacy posturing. E.g., the notion that anyone who thinks new licences ought to address patent issues in some way is logically obliged to try to revoke BSD licence's OSI Certified status (or formally deprecate the licence) is absurd, and we could have done without those and similar time-wasting polemics. At the beginning of the CC0 evaluation, I opined: (1) It's obviously OSD-compliant. (2) It would be helpful if CC would drop the patent waiver from section 4a, leaving open the possibility if not likelihood of implicit patent grants and defences based on estoppel -- and OSI should ask CC to please consider doing so. (3) Irrespective of CC0's merits as a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). I think -- hope -- that we all agree, despite recent noisy polemics, most of us agree that it's useful for newly crafted licences to permit at least implicit patent defences if not explicit patent rights, and that modern licences that address such matters are, all other things being equal, a better idea than ones that don't -- but that saying that is miles away from saying BSD should be formally deprecated. (As Larry points out, there are nuances among degrees and types of explicit patent grants.) -- Rick Moen "Take note; the semicolon is never to be used correctly." r...@linuxmafia.com -- FakeAPStylebook McQ! (4x80) _______________________________________________ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss