Subject: Re: license with patent grants appropriate for specifications?
From: Chuck Swiger <chuck@codefab.com>
Date: Sat, 15 Jan 2005 12:57:08 -0500

Lawrence Rosen wrote:
>> As I wrote earlier, the patent licence must extend at least to
>> noncompliant Open Source derivatives of an original compliant
>> implementation.  Otherwise the software is not Open Source because the
>> community is not free to make and distribute modified versions.
> 
> Not as I see it. To be compatible with open source, the patent license must
> at least extend to the creation of conforming implementations, and it must
> not forbid non-conforming implementations. On a case-by-case basis,
> additional patent licenses may be needed from the original licensor or from
> third parties for non-conforming applications.

What you say here is true, but if the original software is OSD-compliant, then 
the patent license(s) for the original software need also be freely available 
to non-conforming applications.  OSD #3 states: "The license must allow 
modifications and derived works, and must allow them to be distributed under 
the same terms as the license of the original software."

If the original software involves material for which a patent license is 
needed, that patent license must be freely available or else the original 
software itself could not be Open Source (per OSD #1).  If a free patent 
license was available for the original work, that same free patent license 
must also be available for derived works per OSD #3.

There exist no qualifiers to OSD #3 which would allow an OSD-compliant license 
to exclude some derivative works, whether on the basis of standards-compliance 
or for any other reason. [1]  However, now that I think about it, perhaps OSD 
#4 could be used to mitigate against the problem of people releasing 
deliberately non-compliant derivatives of Open Source Software.

*ahem*  I wasn't thinking of Microsoft when I mentioned people just now, and 
Sun's Java isn't currently Open Source, but for the sake of example: if Java 
was licensed so that OS vendors redistributing Java had to provide the source 
for an unmodified, standards-compliant JVM and any changes to that JVM as 
external patch files, perhaps that would be enough to satisfy Sun's concerns 
about people being stuck with non-standard JVM's.

Or perhaps not-- I am not qualified or in the position to evaluate Sun's 
position and IP concerns with regard to Java-- but my point is that the OSD 
will permit licenses to take measures to ensure that the original 
standards-compliant version of software is always available to end-users who 
want it.  And if the end-users prefer a non-standards-compliant modified 
version of that software, well, that's just fine, too: enabling users to 
decide for themselves which software they prefer to use is a core freedom that 
both Open Source and Free Software agree upon.

-- 
-Chuck

[1]: I am not including the case where open source software is modified to 
include patented works from non-open source software.  The OSD requirements 
would obviously not apply to those patent licenses.  :-)