Quoting John Cowan (co...@ccil.org): > The deep [patent] threat comes from third parties, which is a risk > that neither ther the licensor nor the licensee can reasonably > mitigate.
Sure. > Okay, but if we accept that patent infringement makes a piece of > software not open source, we are in this position: if someone asks > "Is program X open source?" our only replies are "Definitely not" > and "Maybe." A classification like that isn't very useful. Which is a compelling reason not to be quite that pessimistic. But consider a worst-case example, a new video codec design and example open source-licensed implementation. The hypothetical author is no neophyte and does as much patent research as can be reasonably justified absent being backed by a deep-pocketed large organisation with a high degree of resolve. No patent landmine is found. The happy day comes and version 0.91 emerges, the first public beta, and everyone rejoices because it's good (let's say) and it's open source (e.g., as to licence terms and source access). I _would_ join everyone in calling that open source -- and would continue to do so in this scenario until two days after v. 2.1 emerges, two years later, when MPEG-LA or Qualcomm suddenly says 'Please pay exhorbitant royalties for our cherished if little known patent.' I would now, if asked (and if credible people say the infringement claim has teeth), say the example codec implementation is _not_ open source (within reach of that patent), even though I asserted yesterday that it was -- because now it is known to fail OSD#1, and yesterday it was believed not to. This course of events is unfortunate, but, I continue to say it's reality. It can happen to any codebase. For parser code, say, the danger is not significant, but remains non-zero -- like stepping on a non-figurative landmine in Central Park. With video codecs, it's more like the risk of stepping on non-figurative landmine in Western Sahara: _very_ non-trivial. Does that mean a new example video codec is automatically at most _maybe_ open source? I wouldn't say so. I'd believe the licensing terms -- but IMO there's always an invisible asterisk saying that sudden discovery of unsuspected patent problems could badly impair recipients' rights, and this cannot be otherwise dealt with because that's what 'unsupected' means. OSI doesn't need to volunteer to make sure everyone knows this, nor do users of the phrase 'open source'; not their job. > It's more meaningful IMO to say that such a program *is* open source > and accept that not all open-source software is usable everywhere. Quibble: I'm almost in agreement, but I'd say that such a program is open source except in places where (during a patent's runtime) it isn't. The problem with your formulation is that it would have you say that a program validly issued under an OSI-Certified licence is open source even if it totally fails OSD#1 on account of royalty requirements. I would suggest that's not the soil you want to build on. > (BTW, I've decided to start omitting the "-- " line because so many > mail clients, notably Gmail, suppress it and everything after it.) Understandable, but my own parsing of that situation is that if users choose an MUA that unconditionally strips everything below a son-of-RFC 1036 (aka RFC 1849[1]) .signature delimiter, then they have made a valid if life-impoverishing choice and that their request to be denied enjoyment should be honoured. Your way, you are putting people in a position where they cannot turn off .signature display in the conventional way, even mindfully. [1] RFC 1849 proclaims this standard 'not now appropriate for use in current implementations. I respectfully differ. (However, on further examination, I see that the remark concerns other parts of son-of-RFC 1036 that are more-evidently obsolete and problematic.) -- Cheers, "I am a member of a civilization (IAAMOAC). Step back Rick Moen from anger. Study how awful our ancestors had it, yet r...@linuxmafia.com they struggled to get you here. Repay them by appreciating McQ! (4x80) the civilization you inherited." -- David Brin _______________________________________________ License-discuss mailing list License-discuss@lists.opensource.org http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
