Fedora, the popular Linux distribution, will no longer include software licensed under CC0, the Creative Commons “No Rights Reserved” license.
In order to support the broad reuse of copyrighted content in new works, CC0 offers authors “a means to waive all of their copyright and related rights in their works to the fullest extent permitted by law. “. The license originated in response to the Sonny Bono Copyright Term Extension Act (CTEA) of 1998, which extended the copyright term by 20 years at the expense of the public domain.
But CC0 explicitly states that the licensor does not waive patent rights, which for free and open source software (FOSS) is a potential problem. This means, for example, as described here, if you use CC0-licensed code in your project, and the author of that code later claims that your project infringes a patent he holds relating to that code, your defense will be limited.
Avoiding the use of CC0-licensed code is one way to avoid those so-called submarine patents that could torpedo you years later.
In a message to the Fedora Project mailing list for legal issues, Richard Fontana, a technology attorney for Red Hat (which sponsors Fedora), explained that if CC0 is cited as a “good license”, it won’t be not for long.
“We plan to classify CC0 as authorized content only, so that CC0 is no longer authorized for code,” Fontana said. “This is a fairly unusual change and may impact a significant number of Fedora packages (which is unclear to me at this time), and we may grant an exclusion for existing packages that include code covered by CC0.”
Fontana said there is a growing consensus in the FOSS community that licensing without any form of patent license or forbearance is not appropriate. CC0, he said, like other Creative Commons licenses, includes a clause that explicitly states that no patent rights are waived by the licensor.
In an email to The registerBruce Perens, co-founder of the Open Source Initiative, writer of the original Open Source Definition (OSD) and currently CEO of software-defined radio company Algoram, said there was a lot of context on that question.
Perens explained that the open source world increasingly finds standards that require RAND – a reasonable, non-discriminatory patent license – problematic. As an example, he cited Qualcomm, which he said lobbied within standards bodies like ETSI (the European Telecommunications Standards Institute) to make licenses requiring patent payments considered “open source”, which they are not.
A Qualcomm attorney, he said, “once offered to pay me to write an article claiming that Richard Stallman didn’t want to exclude patent royalties from the GPL. What a big lie that would have been!”
“We want standards to be more open source friendly, rather than instruments for companies to block us, and that means they need to stop being fertile grounds for patent cultivation,” Perens said. “Qualcomm would say they need patent revenue to fund their research so they can bring us things like mobile 5G.
“Given things coming out of the open source world (e.g. GNU Radio, the very software that Qualcomm and other wireless companies use for prototyping), it’s more apparent than ever that software patents are more of an obstacle to the industry than otherwise.”
Perens said the OSD implicitly prohibits patent royalties, as well as discriminatory patent licensing with royalties, because of its many conditions. But the OSD does not explicitly state that each license must contain a patent license.
“I would have included explicit patent language in the OSD if I had written it today,” Perens said. “We learned a lot. The OSD held up incredibly well though, so I’m not complaining.”
According to Perens, it is now clear that an open source license must include an explicit patent grant.
Fedora takes the first step by refusing licenses that explicitly deny the existence of a patent grant. It’s a good idea
“Fedora is taking the first step,” he said, “by refusing licenses that explicitly Deny that there is a patent grant. It’s a good idea and should be followed everywhere.”
Bradley M. Kuhn, Policy Fellow at the Software Freedom Conservancy, said The register in an e-mail, “Patents that [apply to] are a constant threat to the rights of FOSS users and redistributors, especially those who deploy FOSS for commercial purposes. That’s why SFC is completely opposed to patenting software.”
Kuhn – who emphasized that he was speaking from a political point of view and not offering legal advice – said the implicit, and sometimes even explicit, patent license in copyleft licenses like GPLv2 is very strong. .
“We are aware that major patent holding companies – Oracle in particular, but others as well – have urged FOSS developers to choose licenses such as CC0 that explicitly withhold patent licensing,” Kuhn said. .
“Since FOSS became popular in the late 1990s, some companies (including, in particular, Microsoft) have sought to monetize FOSS by demanding patent royalties for FOSS. At SFC, we have successfully put put in place copyleft enforcement actions in such situations to prevent bad actors from shaking others for patent royalties in such cases, including for Linux itself.”
Kuhn continued: “However, if a FOSS license explicitly states that no patent license of any kind is provided, powerful patent holders may lash out – unchecked – against commercial users of that FOSS. If this FOSS is included in Linux-based software distributions, every user of the distribution is at risk, so my colleague Mr. Fontana made a good recommendation here at the Fedora project, other distributions may also want to consider this problem.”
Kuhn argues that despite corporate efforts to convince projects to avoid copyleft licenses, software developers really should consider adopting the GPL or copyleft-next rather than relying on a license that is silent on patent licenses or, like CC0, refuses to offer patent rights. to renouncer. ®