If a piece of software is covered by a patent that is not granted to recipients or is otherwise not royalty-free for, then they will be unable to use or distribute the code. To me, that is a direct failure of the OSD, regardless of it being due to copyright law, patent law, or any other IP consideration. They are not separable issues to the consumer.
I think the OSD — whether condensed to 4 or 5 concepts, the current 10 criteria, or simply the symbolic notion — applies generally and is not constrained to just copyright or regulation or other law. The definition is in a broader community perspective, not a lawyer’s desired method of litigation or protection, that the code is truly “open” for myriad purposes. If the code is covered by a royalty-enforced patent, then I can’t use it, plain and simple. It’s not open source in my book. Sean > On Nov 9, 2018, at 2:18 PM, Lawrence Rosen <lro...@rosenlaw.com> wrote: > > Nicholas Weinstein wrote: > > But with patents only the first inventor gets patent protection, so there > > is always a possibility that someone who has never contributed to the > > project has a valid patent covering some of the functionality (presuming > > patents cover software at all, which is a separate discussion). > > We should separate copyrights from patents – at least legally, although they > are referenced in the same provision of the U.S. Constitution. You refer more > generally to intellectual property, and that's probably too BIG a topic for > just this list. > > We should trust W3C to define Royalty-Free Patents and let OSI define Open > Source Copyrights with the OSD. When you put these definitions both together, > the software will be about as free as possible under existing law. > > > I would be happy to suggest tweaking the wording to address my two points > > if appropriate, but I don’t want to overstep if that’s not the intention. > > That is my hope. It would not be an overstep!!!! > > /Larry > > /Larry > > Lawrence Rosen > Rosenlaw (www.rosenlaw.com <http://www.rosenlaw.com/>) > LinkedIn: LawrenceRosen > 3001 King Ranch Rd., Ukiah, CA 95482 > Cell: 707-478-8932 > This email is licensed under CC-BY-4.0 > <https://creativecommons.org/licenses/by/4.0/>. Please copy freely. > <image001.png> > > From: Nicholas Matthew Neft Weinstock <nwein...@qti.qualcomm.com> > Sent: Friday, November 9, 2018 10:22 AM > To: license-discuss@lists.opensource.org; lro...@rosenlaw.com > Subject: RE: [License-discuss] Open source software licenses and the OSD > > Lawrence Rosen wrote: > <snip> > > Instead, as long as the five basic freedoms on the cover of my book are > protected, software will be open source enough for me. That is why I have > proposed this common definition: > > “Open source software” means software actually distributed to the public > under software licenses that provide that every licensee is free to make > copies of the software or derivative works thereof, to distribute them > without payment of royalties or other consideration, and to access and use > the complete source code of the software. > > =-=-= > > Hi Larry, thank you for sending out a summary of the history of the OSI > definition along with this concatenated statement. > > I’m not sure if your intention is to start a conversation about a new, more > concise definition, or simply to state your perspective? > > I believe you’re referring to your Open Source Licensing book, which lists > the following: > · Use open source software for any purpose > · Make and distribute copies > · Create and distribute derivative works > · Access and use the source code > · Combine open source and other software > > I’m clearly seeing the first four in your proposed definition, and it seems > reasonable to infer the fifth between making derivative works and access/use > the source code. > > However, I could see some community confusion regarding a new phrase you’re > adding that isn’t reflected in the five basic freedoms from your book cover: > “without payment of royalties or other consideration.” > > First, while it’s not required, GPLv2 section 1 does allow a distributor to > “…charge a fee for the physical act of transferring a copy…” I recognize > there’s a difference between paying to receive the software and paying a > royalty when you distribute the software, but I have worked with plenty of > Engineers who would not understand that distinction and might be confused > whether GPLv2 fits the new definition. > > Second, it’s clear to me that you’re only referring to Copyrights, based on > your reference to the relevant Copyright rights (copy, create derivative > works, distribute). But some people might be confused and think you’re > referring to royalties for any type of IP, including Patents or Trademarks. > > With copyright, independent creation is separately protectable. So every > author can contribute their code subject to a qualifying license, and the > project can accurately make a statement that the full project is unencumbered > by any copyright royalties. > > But with patents only the first inventor gets patent protection, so there is > always a possibility that someone who has never contributed to the project > has a valid patent covering some of the functionality (presuming patents > cover software at all, which is a separate discussion). > > And with trademarks, it would be easy for an unaware contributor to include a > picture of Mickey Mouse as sample media, or an audio file of the Microsoft > Windows power-on sound, or even a trademarked phrase such as “Let’s get ready > to rumble!” that a maintainer might not recognize. > > As you can see, it doesn’t seem like any responsible project could make a > conclusive statement that it is unencumbered by any patent or trademark > royalties without significant search efforts, which would be unreasonable to > expect of most maintainers. > > Also, there are some licenses currently recognized as Open Source that have > express patent disclaimers (such as the Creative Commons v4.0 series of > licenses) or express trademark disclaimers (including your own Academic Free > License and Open Software License, as well as other common licenses including > CDDL, CPAL, GPLv3 (permitted additional limitation, section 7), MPL, and > Ms-PL/Ms-LPL/Ms-RL). It would seem that all of these would be outside your > definition if this new phrase were to include all type of IP Royalties. > > I would be happy to suggest tweaking the wording to address my two points if > appropriate, but I don’t want to overstep if that’s not the intention. > > Thank you, > Nicholas Weinstock > > _______________________________________________ > License-discuss mailing list > License-discuss@lists.opensource.org > http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
_______________________________________________ License-discuss mailing list License-discuss@lists.opensource.org http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
