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Working Toward a Patent-Agnostic Open Source License 124

Glyn Moody writes "Are there ever circumstances when software patents that require payment might be permitted by an open source license? That's the question posed by a new license that is being submitted to the Open Source Initiative (OSI) for review. The MPEG Working Group wants to release a reference implementation of the new MPEG eXtensible Middleware (MXM) standard as open source, but it also wants to be able to sell patent licenses. If it can't, it might not make the implementation open source; but if it does, it might undermine the fight against software patent proliferation."
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Working Toward a Patent-Agnostic Open Source License

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  • by GNUbuntu ( 1528599 ) on Thursday April 09, 2009 @05:53PM (#27525025)
    Yeah, but then it would probably be impossible to enforce their patent pool since the BSD/MIT licenses don't require you to even acknowledge that you've combined their code into a proprietary product.
  • by jvillain ( 546827 ) on Thursday April 09, 2009 @06:01PM (#27525133)

    I think it boils down to this. The open source community can feel free to contribute code and documentation to our project. But we will feel free to keep you from being able to run it on an open source platform and we have the force of patents to stop you. If you want to fork the code we just drop the patent bomb.

    The MPEG group and the other douche bags they hang with are the most anti open source group there is. Am I ever going to play Blu-ray movies on my Linux computer? Not likely.

  • by Anonymous Coward on Thursday April 09, 2009 @06:03PM (#27525149)

    No patents on any complex system has any excuse to exist in any domain.

    Patents destroy creativity in Software, but also in all Life Sciences.

    Patents have long outlasted any kind of usefulness (unless you count helping being evil as "usefulness"

  • by anthm ( 894202 ) on Thursday April 09, 2009 @06:10PM (#27525217) Homepage Journal

    Our project (FreeSWITCH []) uses the MPL for the main application and BSD for satellite libraries that we create that can be used by other projects etc.

    Once you decide to have open source code, it's more logical to stick with the fact that at least the core code is FREE and come up with ways to develop a product on top of it if you want to have something to sell. Otherwise it sounds like an "open source tax" and businesses do not like uncertainty. If they choose to use a code base they need to know it will always be available.

  • by harry666t ( 1062422 ) <harry666t@[ ] ['gma' in gap]> on Thursday April 09, 2009 @06:15PM (#27525283)

    If a patent (or anything else) says I can't do that, then how is it open source?

    Open source yes, free software no.

    That's what Stallman was talking about when he said he didn't like the new term.

    harry@pierdonka:~$ vrms
    No non-free or contrib packages installed on pierdonka! rms would be proud.

  • by Improv ( 2467 ) <> on Thursday April 09, 2009 @06:16PM (#27525291) Homepage Journal

    That's all well and good for a society that doesn't produce ideas and share them between themselves very freely. It more describes the pre-internet 80s society than the modern internet-driven society - Apple, Youtube, and the like have shown that society does not have to be fed, as consumers, only things that dedicated producers provide.

  • by flaming error ( 1041742 ) on Thursday April 09, 2009 @06:16PM (#27525293) Journal

    Published source code is not the same as "open" source code.

    They're trying to confuse the issue so they can have it both ways - look like a good corporate citizen by donating to the community, but making us pay for the donation.

  • by Anonymous Coward on Thursday April 09, 2009 @06:22PM (#27525349)
    I completely agree, if I can't share my customised versions of open source software with others then I wouldn't call it open. Just because patents are different to copyright doesn't mean that they can't restrict me in the same ways.

    To be clear, copyright licenses can't avoid patents as a whole but what they can do is say that you can't distribute copyrighted material without granted any necessary patents that you have. This gets around the 'submarine patent' scenario where someone contributes patent infringing code and then demands royalties.

    The interesting part of this decision is that it might invalidate lots of open source licenses that don't explicitly exclude software patents, or it might have a roll on effect to software licenses that just a blind eye to patents. Most people seem to think that if they get BSD code they can do anything including closing the source and selling it but obviously with patents they can't. Te GPL version 2 had problems with patents, but version 3 fixes these.

    So this decision will be interesting in that it may change how we think about conventional open source licenses.

  • by Eil ( 82413 ) on Thursday April 09, 2009 @06:33PM (#27525465) Homepage Journal

    That would allow them to release the code under what is typically known as an "open source" license, sure. But releasing code that's known to be covered under a valid patent would undermine the spirit of open source no matter what license you use.

    They would literally be saying to the world:

    "Here's our source code free to download, view, and share. (But it's covered by several software patents so if you actually try to use it, we'll sue you. Have a day.)"

  • by spitzak ( 4019 ) on Thursday April 09, 2009 @06:40PM (#27525539) Homepage

    It really seems to me that in common use "Open Source" *does* now mean you are free to do whatever you want with the source. Just being able to *look* at the source is not called Open Source, it is probably best to call it "published source code" or "the source code is available for you to look at".

    "Free Software" means the enforced-freeness of the GPL, which is a subset of Open Source.

    So for most uses this is neither Open Source or Free Software.

  • by jonbryce ( 703250 ) on Thursday April 09, 2009 @06:45PM (#27525595) Homepage

    The real world uses Adobe Flash.

  • by janwedekind ( 778872 ) on Thursday April 09, 2009 @07:13PM (#27525857) Homepage

    From the email []:

    Patent Covenant is however extended to the compilation and use of a compiled version (as Executable) of this software for study and evaluation purposes only, with the exclusion of distribution of compiled code or any other commercial exploitation.

    Well, maybe someone is trying to argue that other OSI licenses also don't promise anything regarding royalty-free patent-licenses. But this is because licenses are predominantly about the author's copyright and not about the patents. However if the text of this licenses explicitely deals with patents and uses them to restrict users rights, then it formally violates already item 1 of the Open Source Definition [].

    Stallman's answer comes to mind

    If your software would keep us divided and helpless, please don't write it. We are better off without it. We will find other ways to use our computers, and preserve our freedom.

  • by Anonymous Coward on Thursday April 09, 2009 @07:41PM (#27526063)

    "Free Software" means the enforced-freeness of the GPL, which is a subset of Open Source.

    Could something under the BSD or MIT license then be considered "free" (libre)? Is it the enforcement of the GPL that makes it software under it "free" or is it the lack of restrictions?

    [not trolling, just like the intellectual exercise this gives my brain]

  • by russotto ( 537200 ) on Thursday April 09, 2009 @09:16PM (#27526815) Journal
    From TFA:

    I have insisted and obtained, however, that an explicit patent covenant be inserted, to the effect to exclude from any patent concern all who don't distribute the compiled version of the software and to those who compile it only for internal purposes without direct commercial exploitation.

    That renders the patents nearly irrelevant, completely so for general purpose computers. There's nothing to prevent a commercial exploiter from distributing the source code to their customers, along with a compiler and a one-step process for compiling it. Nor for any Linux distro to do essentially the same -- create an "mpeg-mxm" package which requires mpeg-mxm-source and gcc and automagically compiles the package. Even Apple and Microsoft could do it. I'm not sure why this would be acceptable to the MPEG group. There simply is no way to effectively control "object code" without also controlling source code. Not only can source code be translated into object code, it can be executed directly by an interpreter. Then what is your patent doing? As for the dodge of claiming "a machine-readable medium containing the instructions to execute this nonpatentable algorithm"... I wonder if they've realized that they've claimed any computer-readable medium containing the patent description itself...

  • by Pinky's Brain ( 1158667 ) on Thursday April 09, 2009 @10:31PM (#27527251)

    Plain English, do you speak it?

    "Redistribution and use in source and binary forms, with or without modification, are permitted"

    Or did I miss the part where they said "but we withhold the right to sue you for inducement to infringe if you try the former, and actual infringement for the latter"?

  • by kripkenstein ( 913150 ) on Friday April 10, 2009 @02:41AM (#27528589) Homepage

    Does this mean that the source code would be freely available, but that you couldn't use it without paying them? I skimmed the artical and linked pages, but can't figure out what this would actually mean.

    TFA says that it includes a patent covenant not to sue two classes of people: Those distributing only the source, and those compiling for 'internal purposes' only.

    It seems to me that the second case would handle e.g. Linux users that compile and run the code on their machine, and use it to view content. The first case is less clear, it seems that it might be intended to cover people 'working' with the code, and that might possibly extend to Linux distros that distribute the code (but not binaries) to their users (who can then compile it).

    Not sure if it's achieved, but the goal seems to be to sell patent licenses to big corporations that make lots of money off of this sort of thing, while not bothering with individuals and hobbyists.

If I have seen farther than others, it is because I was standing on the shoulders of giants. -- Isaac Newton