Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 16:01 UTC (Mon) by Wol (subscriber, #4433)
In reply to: Fedora to disallow CC0-licensed code by nim-nim
Parent article: Fedora to disallow CC0-licensed code

The problem is that the software - to be foss - must be offered by the licensor free of restrictions INCLUDING PATENTS. If it included a clause whereby the copyright licensor agreed not to enforce patent rights against the software, then that would be fine.

If the law recognised that software is not patentable subject matter, then that would be perfect.

But I think it's the lack of any attempt to address the patent elephant in the room, that is the problem as Fedora sees it.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 16:07 UTC (Mon) by nim-nim (subscriber, #34454) [Link]

Thanks, much clearer than the explanation in the original message !

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 16:16 UTC (Mon) by artefact (guest, #154379) [Link] (16 responses)

Isn't that also the case for GPLv2-only software? Why the double standard?

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 18:35 UTC (Mon) by developer122 (guest, #152928) [Link] (1 responses)

That is an interesting legal question. How would it be any different to say "we're explicitly not dealing with this" instead of saying nothing at all?

I've seen lots of hand-wavy arguments over whether the GPLv2 has an *implied* patent grant, but afaik that's never been put to the test.

At least if a licence explicitly says "this isn't a grant of patent rights, look elsewhere for any grants that may be needed" then there's at least some legal certainty, no? Unless the pervading wisdom is just "we're going to assume an imaginary grant exists (in licences that say nothing) until challenged, and then argue in court that we've been acting in good faith" which seems dumb imo. (but also seems to be the case with most licences that aren't the GPLv3)

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 22:45 UTC (Mon) by khim (subscriber, #9252) [Link]

> How would it be any different to say "we're explicitly not dealing with this" instead of saying nothing at all?

The first rule of jurisprudence: nothing is absolute. Everything is made by made people, laws, agreements, court decisions, etc.

That's why we have such elaborate and complex system in place.

And this also why simply not talking about patents is very different from explicitly saying “patents are excluded”.

Given the fact that for a long time quite reasonable people, even people with some law degrees, believed that software simple couldn't be covered by patents it's easy to treat simple omission as “implied license”: yes, this agreement doesn't mention patents at all, but it's obvious they were supposed to be included, just someone saved few lines.

Heck, Google and Bing are operating on such “implied licenses”! Granted, these have nothing to do with patents, but as you can see “implied licenses” are not myth, they can be used to make billions, literally.

On the other hand explicit language clearly denies such possibility: it's pretty hard to say you have “implied license” when copyright text clearly says you are not entitled to get one.

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 18:42 UTC (Mon) by Wol (subscriber, #4433) [Link] (13 responses)

The GPL v2 explicitly addresses patents ...

> Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.

That's basically the requirement - to be Free Software, you have to pass on *all* the rights you have, patents and all.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 25, 2022 19:05 UTC (Mon) by Wol (subscriber, #4433) [Link]

To follow up myself, the GPL makes it impossible to distribute patent encumbered software because the requirement to licence it "for all or none" means that if you don't provide a patent licence, the software cannot be used by ANY downstream :-)

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 4:16 UTC (Tue) by NYKevin (subscriber, #129325) [Link] (11 responses)

It is usually preferable to quote the main body of the license rather than the preamble. The preamble may have legal effect in some jurisdictions, but probably only in cases where the main body is unclear or ambiguous. Here's the portion of the main body (of the GPL2) that deals with patents:

> 7. If, as a consequence of a court judgment or allegation of patent
> infringement or for any other reason (not limited to patent issues),
> conditions are imposed on you (whether by court order, agreement or
> otherwise) that contradict the conditions of this License, they do not
> excuse you from the conditions of this License. If you cannot
> distribute so as to satisfy simultaneously your obligations under this
> License and any other pertinent obligations, then as a consequence you
> may not distribute the Program at all. For example, if a patent
> license would not permit royalty-free redistribution of the Program by
> all those who receive copies directly or indirectly through you, then
> the only way you could satisfy both it and this License would be to
> refrain entirely from distribution of the Program.
>
> [snip]
>
> 8. If the distribution and/or use of the Program is restricted in
> certain countries either by patents or by copyrighted interfaces, the
> original copyright holder who places the Program under this License
> may add an explicit geographical distribution limitation excluding
> those countries, so that distribution is permitted only in or among
> countries not thus excluded. In such case, this License incorporates
> the limitation as if written in the body of this License.

Oddly, there does not appear to be anything in the main body of GPL2 which explicitly states that the licensor grants a patent license to the licensee. Seeing as they fixed this in GPL3 (i.e. GPL3 does contain such language), I'm inclined to view it as an error or omission in GPL2, rather than the FSF taking the position that the somewhat vague language in the preamble actually grants a patent license all by itself.

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 7:13 UTC (Tue) by Wol (subscriber, #4433) [Link] (10 responses)

Note, though, that Section 7 effectively says "if you can't pass on your patent rights, you can't pass on the program".

So a patent licence is extremely clearly implied ... any patent suit by a distributor would instantly place the distributor in breach of the GPL. (And patent suits from 3rd parties cannot be addressed in any agreement, sadly.)

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 7:25 UTC (Tue) by NYKevin (subscriber, #129325) [Link] (7 responses)

No, section 7 says that, if *someone else's* patent rights prohibit you from liberally licensing the software, then you can't use that as a "get out of GPL free card." There are two additional paragraphs that I cut which reiterate that this is what the license would logically do anyway, and that the entire section is included "to make thoroughly clear what is believed to be a consequence of the rest of this License." In context, it reads as a "yes, you really do need to comply with the license, even if doing so is hard" clause (sometimes called a "hell or high water clause"), rather than an actual patent license.

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 9:09 UTC (Tue) by Wol (subscriber, #4433) [Link] (6 responses)

Yup.

But let's take a hypothetical upstream with patent rights. They distribute the program under GPL, and as the patent owner, what happens to the patent rights? Either they distribute it WITH a patent licence, enabling downstream to share it onwards, or they distribute it WITHOUT a patent licence, in which case the GPL is invalid.

So much so, that I suspect a Judge would rule that - by claiming the software was GPL - they had automatically granted a patent licence with it, intentional or not.

Clause 7 is aimed at 3rd-parties - but it has the side effect of blocking distributors from asserting patents against software they distribute.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 17:37 UTC (Tue) by NYKevin (subscriber, #129325) [Link] (4 responses)

> or they distribute it WITHOUT a patent licence, in which case the GPL is invalid.

While I agree that this defeats the spirit of the GPL, I fear that (version 2 of) the GPL doesn't actually say that.

Remember, the original copyright or patent holder cannot violate (and is not bound by) their own license. So you can't apply section 7 to the actual patent owner, just to downstream reusers who are bound by patent licenses or settlements. This is why GPL3 had to add an explicit patent license.

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 19:30 UTC (Tue) by Wol (subscriber, #4433) [Link] (3 responses)

Very true ... BUT.

If I give you some software under the GPL, I am giving you the right to use and pass that software on. If I have submarine patents and don't grant you a licence, the GPL itself says you can't pass it on.

Cue a massive legal mess about misrepresentation, passing off, estoppel, and all that crap that the licensOR is responsible for. Any copyright holder distributing their code that way is setting themselves up for a nasty legal battle, should downstream decide to fight.

Imho, if upstream knowingly pull a stunt like that, the GPL isn't worth the paper it's written on, and upstream are firmly on the hook for misrepresentation, deceit and entrapment.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 21:12 UTC (Tue) by Vipketsh (guest, #134480) [Link] (2 responses)

> I have submarine patents

Out of curiosity, why is the author's patents special in this context ? What if the code in question implements somebody else's patent (possibly unknowingly) ?

I think this could be a slippery slope. If it goes in the direction "the code is implied to be fully patent free" does that put responsibility on the author to do due diligence, which is a lot of annoying (legal) work ? Does the author get to be a defendant in a patent case against a user ? That is not an aspiring prospect, to say the least.

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 21:22 UTC (Tue) by NYKevin (subscriber, #129325) [Link]

If you knowingly infringe someone else's patent, under US law they can get enhanced damages (compared to unknowing infringement). As a result, it is fairly common for lawyers to advise software engineers to refrain from researching or commenting on specific individual software patents. A license which explicitly promises such research is not a license that the industry is likely to accept.

(Of course, you can put whatever licensing terms you want in your private hobby project. Just don't expect BigTech to use it.)

Fedora to disallow CC0-licensed code

Posted Jul 27, 2022 11:08 UTC (Wed) by Wol (subscriber, #4433) [Link]

> > I have submarine patents

> Out of curiosity, why is the author's patents special in this context ? What if the code in question implements somebody else's patent (possibly unknowingly) ?

Because it's evidence (proof?) of bad faith on my part.

If I give you MY GPL code (which contains a promise that you can share it), but don't give you MY patents (which you NEED to be able to share it), then the GPL is essentially worthless. I've given you code which you can't legally use or share, and told you it's GPL. That is basically deception, entrapment, call it what you will, but it's downright nasty.

If, on the other hand, I don't know about someone else's patents (or even if I do but I don't have a licence), then that doesn't stop you sharing all your rights with someone else. Out of decency I should tell you about the patents if I know, but that's not evidence of anything.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Posted Jul 26, 2022 23:02 UTC (Tue) by rgmoore (✭ supporter ✭, #75) [Link]

So much so, that I suspect a Judge would rule that - by claiming the software was GPL - they had automatically granted a patent licence with it, intentional or not.

Sure, but there's a big practical difference between concluding something is a logical interpretation of the license and having it spelled out explicitly. To quote The Zen of Python, explicit is better than implicit. If you want to be sure the original author has actually licensed their patents, say it clearly in the license. If you depend on the judge interpreting things the same way you do, you may be disappointed.

Fedora to disallow CC0-licensed code

Posted Aug 2, 2022 11:13 UTC (Tue) by patrakov (subscriber, #97174) [Link] (1 responses)

What if I don't have (and, in my country, don't need) these patent rights, but am aware of third parties claiming to hold applicable patents elsewhere?

Fedora to disallow CC0-licensed code

Posted Aug 2, 2022 12:37 UTC (Tue) by farnz (subscriber, #17727) [Link]

This (as with all legal things) becomes a "talk to your lawyer, get their advice" situation. Because the GPLv2 does not include a patent licensing clause (the GPLv3 does), it comes down to arguing about the exact intent behind "The act of running the Program is not restricted" from clause 0, and the distribution rights under clauses 1, 2, 3 and 7. One common interpretation is that you, as the person providing a copy of the code, do not apply restrictions yourself, nor are you restricted from distributing via section 7 since the patents don't apply in your country; someone in a region where the patents do apply may find themselves unable to distribute under section 7 because of the patent terms.

Incidentally, this sort of thing is why not talking enough about patents is preferable to a lawyer to explicitly disclaiming anything to do with patents; in the event someone launches a patent case against a downstream distributor or user, a lawyer can look at the text of the GPLv2 and argue about the licensor's intent, whereas with CC0's explicit patent disclaimer, the lawyer has nothing to lean upon.