I am the standards chair of OSI. We are indeed concerned with patents in
standards, and we spend a lot of time and money on the issue. We assert
that the OSD terms apply to patents as well as copyright.
Thanks
Bruce
On Fri, Nov 9, 2018 at 1:33 PM Christopher Sean Morrison <brl...@mac.com>
wrote:
>
> 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)
> 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
>
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