Re: [License-discuss] patent rights and the OSD

[Ben Tilly]

I used weasel words, "..does impact distribution of software.."  By which I
meant that the act of distributing software CAN trigger patent law.  Not
that it always does.

Arguments can be made both ways on this.  Giving away software for free can
be argued to fall under, "Whoever actively induces infringement of a patent
shall be liable as an infringer."  But, as you said, free speech is
involved here.

That said, downloading compiled code in the US from a Canadian ftp site is
an activity that OSD #1 says should be allowed, but my understanding of US
patent law clearly says that this is forbidden.  And that's enough for
patent law to cross into territory that the OSD cares about.

(I'm still not a lawyer, etc.)

On Tue, Mar 7, 2017 at 5:52 PM, Lawrence Rosen <lro...@rosenlaw.com> wrote:

> Ben Tilly wrote:
>
> > According to the statute as shown at https://www.law.cornell.
> edu/uscode/text/35/271, patent law covers selling and importing.  Which
> by my reading means that it does impact distribution of software, even if
> you do not run it.
>
>
>
> I don't read the law quite that way. Certainly selling or importing a
> product that contains patented software for its intended use would be
> infringing. But merely importing or distributing source code that is
> licensed under CC0 does not infringe. I'd call it free speech.
>
>
>
> Other opinions?
>
>
>
> /Larry
>
>
>
>
>
> *From:* Ben Tilly [mailto:bti...@gmail.com]
> *Sent:* Tuesday, March 7, 2017 4:27 PM
> *To:* Lawrence Rosen <lro...@rosenlaw.com>; License Discuss <
> license-discuss@opensource.org>
> *Subject:* Re: [License-discuss] patent rights and the OSD
>
>
>
> *[] *
>
> IANALTINLA and all that.
>
>
>
> On Tue, Mar 7, 2017 at 3:57 PM, Lawrence Rosen <lro...@rosenlaw.com>
> wrote:
>
> Christopher Sean Morrison wrote:
>
> > Software patents are terrible in part because they pertain to the
> source code itself, thus affecting the distribution terms on that code.
>
>
>
> Patents don't pertain to source code or to code distribution, at least not
> in legal terms of direct patent infringement. Patent rights pertain to the
> "use" of the software, not its written description.
>
>
>
> Patents are already described as publicly as open source code (see
> USPTO.gov), but one is under patent law and the other under copyright law.
> This openness of publication under patent law is on purpose, although with
> the flood of software patents and their obscure language, this publication
> openness is not very helpful to creators of copyrighted software. But this
> doesn't affect source code or its distribution, certainly not literally in
> the many jurisdictions where the patents are ineffective, nor in the U.S.
>
>
>
> Where this discussion can go awry is when we interpret the OSD too broadly
> with respect to patents. The OSD can be clarified or amended, but at its
> birth nobody fully understood software patents. After reading the CC letter
> to the White House (https://github.com/WhiteHouse/source-code-policy/
> issues/149), I can agree it is a complicated problem.
>
>
>
> /Larry
>
>
>
>
>
> *From:* License-discuss [mailto:license-discuss-boun...@opensource.org] *On
> Behalf Of *Christopher Sean Morrison
> *Sent:* Tuesday, March 7, 2017 3:10 PM
> *To:* license-discuss@opensource.org
> *Cc:* License Discuss <license-discuss@opensource.org>
> *Subject:* Re: [License-discuss] patent rights and the OSD
>
>
>
>
>
>
> On Mar 07, 2017, at 04:45 PM, Ben Tilly <bti...@gmail.com> wrote:
>
> When we talk about whether a software license is OSD compliant, we are
> only addressing the question of whether this license restricts software
> under copyright law in a way that violates the OSD.
>
>
>
> I hear you, but I don't see where the OSD says that.  It does not mention
> copyright law.  The OSD annotated or otherwise doesn't even mention the
> word 'copy'.  It (specifically?) says "the distribution terms".
>
>
>
> While I certainly can understand the perspective that there are other
> laws, regulations, and factors, not all of them affect distribution terms
> of the software -- they are restrictions on me, my assets, my situation,
> not the software.  Software patents are terrible in part because they
> pertain to the source code itself, thus affecting the distribution terms on
> that code.
>
>
>
> In a way, it's convenient that the OSD does not specifically call out
> copyright and speaks generically.  It's a testament of forethought (or
> luck) of the original authors.
>
>
>
> Cheers!
>
> Sean
>
>
>
>
>
>
> ___
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>
>
>
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Re: [License-discuss] patent rights and the OSD

[Lawrence Rosen]

Ben Tilly wrote:

> According to the statute as shown at 
> https://www.law.cornell.edu/uscode/text/35/271, patent law covers selling and 
> importing.  Which by my reading means that it does impact distribution of 
> software, even if you do not run it.

 

I don't read the law quite that way. Certainly selling or importing a product 
that contains patented software for its intended use would be infringing. But 
merely importing or distributing source code that is licensed under CC0 does 
not infringe. I'd call it free speech.

 

Other opinions?

 

/Larry

 

 

From: Ben Tilly [mailto:bti...@gmail.com] 
Sent: Tuesday, March 7, 2017 4:27 PM
To: Lawrence Rosen <lro...@rosenlaw.com>; License Discuss 
<license-discuss@opensource.org>
Subject: Re: [License-discuss] patent rights and the OSD

 

[]  

IANALTINLA and all that.

 

On Tue, Mar 7, 2017 at 3:57 PM, Lawrence Rosen <lro...@rosenlaw.com 
<mailto:lro...@rosenlaw.com> > wrote:

Christopher Sean Morrison wrote:

> Software patents are terrible in part because they pertain to the source code 
> itself, thus affecting the distribution terms on that code.

 

Patents don't pertain to source code or to code distribution, at least not in 
legal terms of direct patent infringement. Patent rights pertain to the "use" 
of the software, not its written description.

 

Patents are already described as publicly as open source code (see USPTO.gov), 
but one is under patent law and the other under copyright law. This openness of 
publication under patent law is on purpose, although with the flood of software 
patents and their obscure language, this publication openness is not very 
helpful to creators of copyrighted software. But this doesn't affect source 
code or its distribution, certainly not literally in the many jurisdictions 
where the patents are ineffective, nor in the U.S. 

 

Where this discussion can go awry is when we interpret the OSD too broadly with 
respect to patents. The OSD can be clarified or amended, but at its birth 
nobody fully understood software patents. After reading the CC letter to the 
White House (https://github.com/WhiteHouse/source-code-policy/issues/149), I 
can agree it is a complicated problem. 

 

/Larry

 

 

From: License-discuss [mailto:license-discuss-boun...@opensource.org 
<mailto:license-discuss-boun...@opensource.org> ] On Behalf Of Christopher Sean 
Morrison
Sent: Tuesday, March 7, 2017 3:10 PM
To: license-discuss@opensource.org <mailto:license-discuss@opensource.org> 
Cc: License Discuss <license-discuss@opensource.org>
Subject: Re: [License-discuss] patent rights and the OSD

 

 


On Mar 07, 2017, at 04:45 PM, Ben Tilly <bti...@gmail.com 
<mailto:bti...@gmail.com> > wrote:

When we talk about whether a software license is OSD compliant, we are only 
addressing the question of whether this license restricts software under 
copyright law in a way that violates the OSD.

 

I hear you, but I don't see where the OSD says that.  It does not mention 
copyright law.  The OSD annotated or otherwise doesn't even mention the word 
'copy'.  It (specifically?) says "the distribution terms". 

 

While I certainly can understand the perspective that there are other laws, 
regulations, and factors, not all of them affect distribution terms of the 
software -- they are restrictions on me, my assets, my situation, not the 
software.  Software patents are terrible in part because they pertain to the 
source code itself, thus affecting the distribution terms on that code.

 

In a way, it's convenient that the OSD does not specifically call out copyright 
and speaks generically.  It's a testament of forethought (or luck) of the 
original authors.

 

Cheers!

Sean

 

 


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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 06:58 PM, Lawrence Rosen  wrote:



Christopher Sean Morrison wrote:


Software patents are terrible in part because they pertain to the source code 
itself, thus affecting the distribution terms on that code.


 

Patents don't pertain to source code or to code distribution, at least not in legal terms 
of direct patent infringement. Patent rights pertain to the "use" of the 
software, not its written description.



I didn't meant to imply that the code itself infringes on the patent, but rather that the 
"it pertains" in the practical sense that one can test whether OSD #1 or #7 are 
permitted by looking at the code.


Is it not true that if the code satisfies a patent's claims, any recipient 
could not engage in free redistribution without a patent grant?  That is what 
makes this an OSI matter in my view.



Cheers!
Sean

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Re: [License-discuss] patent rights and the OSD

[Lawrence Rosen]

Christopher Sean Morrison wrote:

> Software patents are terrible in part because they pertain to the source
code itself, thus affecting the distribution terms on that code.

 

Patents don't pertain to source code or to code distribution, at least not
in legal terms of direct patent infringement. Patent rights pertain to the
"use" of the software, not its written description.

 

Patents are already described as publicly as open source code (see
USPTO.gov), but one is under patent law and the other under copyright law.
This openness of publication under patent law is on purpose, although with
the flood of software patents and their obscure language, this publication
openness is not very helpful to creators of copyrighted software. But this
doesn't affect source code or its distribution, certainly not literally in
the many jurisdictions where the patents are ineffective, nor in the U.S. 

 

Where this discussion can go awry is when we interpret the OSD too broadly
with respect to patents. The OSD can be clarified or amended, but at its
birth nobody fully understood software patents. After reading the CC letter
to the White House
(https://github.com/WhiteHouse/source-code-policy/issues/149), I can agree
it is a complicated problem. 

 

/Larry

 

 

From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
Behalf Of Christopher Sean Morrison
Sent: Tuesday, March 7, 2017 3:10 PM
To: license-discuss@opensource.org
Cc: License Discuss <license-discuss@opensource.org>
Subject: Re: [License-discuss] patent rights and the OSD

 

 


On Mar 07, 2017, at 04:45 PM, Ben Tilly <bti...@gmail.com
<mailto:bti...@gmail.com> > wrote:

When we talk about whether a software license is OSD compliant, we are only
addressing the question of whether this license restricts software under
copyright law in a way that violates the OSD.

 

I hear you, but I don't see where the OSD says that.  It does not mention
copyright law.  The OSD annotated or otherwise doesn't even mention the word
'copy'.  It (specifically?) says "the distribution terms". 

 

While I certainly can understand the perspective that there are other laws,
regulations, and factors, not all of them affect distribution terms of the
software -- they are restrictions on me, my assets, my situation, not the
software.  Software patents are terrible in part because they pertain to the
source code itself, thus affecting the distribution terms on that code.

 

In a way, it's convenient that the OSD does not specifically call out
copyright and speaks generically.  It's a testament of forethought (or luck)
of the original authors.

 

Cheers!

Sean

 

 

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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

On Mar 07, 2017, at 04:45 PM, Ben Tilly  wrote:


When we talk about whether a software license is OSD compliant, we are only 
addressing the question of whether this license restricts software under 
copyright law in a way that violates the OSD.


I hear you, but I don't see where the OSD says that.  It does not mention copyright law.  
The OSD annotated or otherwise doesn't even mention the word 'copy'.  It (specifically?) 
says "the distribution terms".



While I certainly can understand the perspective that there are other laws, 
regulations, and factors, not all of them affect distribution terms of the 
software -- they are restrictions on me, my assets, my situation, not the 
software.  Software patents are terrible in part because they pertain to the 
source code itself, thus affecting the distribution terms on that code.



In a way, it's convenient that the OSD does not specifically call out copyright 
and speaks generically.  It's a testament of forethought (or luck) of the 
original authors.



Cheers!

Sean




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Re: [License-discuss] patent rights and the OSD

[Ben Tilly]

My legal rights to software on the computer in front of me may be
restricted by many things.  A short and incomplete list includes copyright
law, patents, contracts, who owns the computer and my employment status.
Any and all of these can impact whether I actually enjoy the freedoms that
the OSD describes.  I may be unaware of or misinformed about any or all
these potential encumbrances.

When we talk about whether a software license is OSD compliant, we are only
addressing the question of whether this license restricts software under
copyright law in a way that violates the OSD.  In principle it is generally
impossible to decide whether I *actually* have the rights described by the
OSD to the software in front of me.

(I am not a lawyer and this is not legal advice.)

On Mon, Mar 6, 2017 at 3:41 PM, Christopher Sean Morrison 
wrote:

>
> In light of the recent CC0 discussion, I’m refreshing my mind on what
> rights are provided under patent law, each of the OSD criteria, and any
> connections between them.
>
> From my reading, a patent gives the holder the right to exclude others
> from (a) making, (b) using, (c) selling, or (d) importing/exporting their
> invention.  The OSD clauses refer to “the distribution terms” in rather
> license- and copyright-agnostic terms, so here’s my basic layman analysis:
>
> 1) Exclusion (a) seems not problematic for the OSD as it precludes others
> outside of licensing.
> 2) Certainly a problem in the broad sense, but exclusion (b) seems not
> problematic with the OSD.
> 3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and
> possibly #7 (Distribution of license).
> 4) Exclusion (d) similarly fails #1 and #7.
>
> So what?  In terms of OSD compliance, there appears to be several issues
> if a patent exists and one does not grant/hold a royalty-free patent
> license.  If I have a software patent and license that software under CC0,
> for example, without any other distribution terms in place, it’s my reading
> that this would technically be distribution terms that violate OSD #1 and
> #7.
>
> This creates an interesting situation where “the distribution terms” of
> some software will depend on whether the distributor holds a patent, not
> necessarily on the language of their license.  There are, of course, ample
> examples of licenses that convey conforming patent rights, both implicit
> and explicitly.
>
> Does anyone disagree that holding a patent and not granting a patent
> license violates the OSD, perhaps as an out-of-band perspective?  Should
> the OSD only be measured against a copyright standard, as originally
> drafted?  Does OSI need to clarify “all bets are off” if there’ s a patent
> or consider them as part of the distribution terms equally?  What are other
> people’s thoughts on this?
>
> Cheers!
> Sean
>
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Re: [License-discuss] patent rights and the OSD

[David Woolley]

On 07/03/17 13:30, Christopher Sean Morrison wrote:

It left me blinking too.  Which OSD clause requires the distribution terms to 
permit use?


I believe that position here is that OSD only covers copyright licensing 
and that US copyright law gives permission to use software (for 
copyright purposes) to anyone with a copy.  UK law does require an 
explicit use permission.


Because it is US-centric, there was no conception that you might need to 
give an explicit permission to use.

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Re: [License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

> On Mar 7, 2017, at 4:08 AM, Gervase Markham  wrote:
> 
> On 06/03/17 23:41, Christopher Sean Morrison wrote:
>> From my reading, a patent gives the holder the right to exclude
>> others from (a) making, (b) using, (c) selling, or (d)
>> importing/exporting their invention.  The OSD clauses refer to “the
>> distribution terms” in rather license- and copyright-agnostic terms,
>> so here’s my basic layman analysis:
>> 
>> 1) Exclusion (a) seems not problematic for the OSD as it precludes
>> others outside of licensing. 2) Certainly a problem in the broad
>> sense, but exclusion (b) seems not problematic with the OSD.
> 
>  Are you saying that a prohibition on using the software is not
> an OSD problem?

It left me blinking too.  Which OSD clause requires the distribution terms to 
permit use?

In the generic sense, one might argue that not having usage rights restricts 
(everyone) “from making use of the program in a specific field of endeavor” per 
OSD #6.  However, that seems like a stretch since not having a patent grant 
prevents use indiscriminately in *all* fields of endeavor.  There’s similar 
indiscriminate prohibition in #5 too.

I’ll be happy to be corrected, but it seems to me as though the OSD criteria 
does not speak to using the software.   

Cheers!
Sean

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[License-discuss] patent rights and the OSD

[Christopher Sean Morrison]

In light of the recent CC0 discussion, I’m refreshing my mind on what rights 
are provided under patent law, each of the OSD criteria, and any connections 
between them.

From my reading, a patent gives the holder the right to exclude others from (a) 
making, (b) using, (c) selling, or (d) importing/exporting their invention.  
The OSD clauses refer to “the distribution terms” in rather license- and 
copyright-agnostic terms, so here’s my basic layman analysis:

1) Exclusion (a) seems not problematic for the OSD as it precludes others 
outside of licensing.
2) Certainly a problem in the broad sense, but exclusion (b) seems not 
problematic with the OSD.
3) Exclusion (c) seems to fail OSD clause #1 (Free Redistribution) and possibly 
#7 (Distribution of license).  
4) Exclusion (d) similarly fails #1 and #7.

So what?  In terms of OSD compliance, there appears to be several issues if a 
patent exists and one does not grant/hold a royalty-free patent license.  If I 
have a software patent and license that software under CC0, for example, 
without any other distribution terms in place, it’s my reading that this would 
technically be distribution terms that violate OSD #1 and #7.

This creates an interesting situation where “the distribution terms” of some 
software will depend on whether the distributor holds a patent, not necessarily 
on the language of their license.  There are, of course, ample examples of 
licenses that convey conforming patent rights, both implicit and explicitly.

Does anyone disagree that holding a patent and not granting a patent license 
violates the OSD, perhaps as an out-of-band perspective?  Should the OSD only 
be measured against a copyright standard, as originally drafted?  Does OSI need 
to clarify “all bets are off” if there’ s a patent or consider them as part of 
the distribution terms equally?  What are other people’s thoughts on this?

Cheers!
Sean

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