Eeek! The Nokia licence is similar to the Mozilla Public License 1.1
(not 1.0) which is why there is a dearth of specific commentary on the
Nokia version.
The MPL 1.0 states:
2.1. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free,
non-exclusive license, subject to third party intellectual property
claims:
(a) to use, reproduce, modify, display, perform, sublicense and
distribute the Original Code (or portions thereof) with or
without Modifications, or as part of a Larger Work; and
(b) under patents now or hereafter owned or controlled by
Initial Developer, to make, have made, use and sell ("Utilize")
the Original Code (or portions thereof), but solely to the
extent that any such patent is reasonably necessary to enable
You to Utilize the Original Code (or portions thereof) and not
to any greater extent that may be necessary to Utilize further
Modifications or combinations.
Here is the MPL 1.1:
2.1. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free,
non-exclusive license, subject to third party intellectual property
claims:
(a) under intellectual property rights (other than patent or
trademark) Licensable by Initial Developer to use, reproduce,
modify, display, perform, sublicense and distribute the Original
Code (or portions thereof) with or without Modifications, and/or
as part of a Larger Work; and
(b) under Patents Claims infringed by the making, using or
selling of Original Code, to make, have made, use, practice,
sell, and offer for sale, and/or otherwise dispose of the
Original Code (or portions thereof).
(c) the licenses granted in this Section 2.1(a) and (b) are
effective on the date Initial Developer first distributes
Original Code under the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is
granted: 1) for code that You delete from the Original Code; 2)
separate from the Original Code; or 3) for infringements caused
by: i) the modification of the Original Code or ii) the
combination of the Original Code with other software or devices.
Here's a saner interface to the OSI mail archive. It contains the
ability to search the archive. There is this discussion on the similar
2.2 section about derived works:
http://www.mail-archive.com/license-discuss@opensource.org/msg05737.html
Mitchell Baker of Mozilla.org (you can see the email address from the
other archive):
<http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:6289:200211:lfioiajldohobkijdnak>)
responds:
"The scope of the patent grant is not enlarged by subsequent derivative
works of the Contributor Version. If the scope was so enlarged, the
Contributor would have no idea how broad a set of patent grants it would
ultimately end up making."
...and...
"A Contributor is not making a patent grant for infringements caused by
code added after the Contributor Version. Same for combinations -- a
Contributor is not making a patent grant for infringements caused by
combinations created after the Contributor Version. If either of these
were the case, then the Contributor would have no way of knowing the
ultimate scope of the patent grants it was making."
We are also told that...
"Section 2.2(d) reflects the extended discussions we had with a set of
patent lawyers. I think it's arguable that 2.2(d) is not needed at all,
it is the negative of 2.2(b). So "pure" contract drafting might leave it
out. But often people want to see what they care about written down, not
implicit in other language. 2.2(d) is included to provide explicit
language for those who want to make sure their patent grant is limited.
So 2.2(d)(3)(i) explicitly says that there is no patent grant for
infringements caused by code added or combinations created after the
Contributor Version."
It's bad news that extended discussions with a set of patent lawyers has
influenced what is in fact a wider public policy issue for free software
licensing. Subsection (d) does not appear to merely clarify (b), to the
extent it could even be left out. It appears to limit the ultimate scope
of patent grants in a way that could significantly inhibit the creation
of modified works, an essential requirement for free software
development.
When we read 2.1(b) of the MPL 1.0 we see that while the patent grant is
not unlimited it at least applies to the Utilisation of some
Modifications or combinations. Does 2.1 of the MPL 1.1 provide for this?
2.1(d) does not appear to grant any patent licence for modified code.
And if we compare 2.1(b) with the old 2.1(b) we find that any mention of
a patent licence for modified and combined code has disappeared.
2.1(a) in the MPL 1.1 only grants a modification right under _copyright_
(once one compares this to 2.1(a) of the MPL 1.0 one starts to see just
how extensively the licence has been changed).
Notice how no one responds to Brian Behlendorf's clarifying question:
http://www.mail-archive.com/license-discuss@opensource.org/msg05815.html
"not enlarged by" I totally understand. I'm asking whether a patent
grant, applying to the specific contributions (and previous contributions)
in that version, survive to a derivative work too. I'm not asking about a
derivative work with *new* code that would violate another one of
Contributor's patents; assume the change between the Contributor Version
and the derivative work is completely neutral on patent terms.
If not, then the patent grants by contributors ends up being pretty
useless (since they last only one Version), so I've got to believe this is
handled, I'm puzzled as to how though, since the language does not appear
to allow it.
Lawrence E. Rosen made a single response which specifically "doesn't
help interpret MPL section 2.2.":
http://www.mail-archive.com/license-discuss@opensource.org/msg05793.html
I understand the issue and where Brian Behlendorf is coming from. While
I had some influence upon the W3C's royalty-free patent policy I could
not convince them that royalty-free grants should apply to subsequent
revisions of a recommendation. People may find some parallels with
derived works/modifications: https://macrology.co.nz/W3C_Patent_Policy/
The problem I raised with the Nokia licence also applies to the MPL 1.1.
So the Nokia licence cannot be excluded on this point unless solely MPL
1.1 licensed software is also excluded.
I haven't located a release date for the MPL 1.1 but it appears to have
been somewhere before early-1999.
I do not have further time to devote to this issue so please don't
interpret my public silence as agreement that the Nokia licence and the
MPL 1.1 is DFSG-free.
Good news though is that the Mozilla project is triple licensed so there
is still the LGPL and GPL to fall back on.
Regards,
Adam
