LWN: Comments on "Fedora to disallow CC0-licensed code"

Fedora to disallow CC0-licensed code

ceplm — Thu, 04 Aug 2022 09:01:25 +0000

Such repute would be certainly better than nothing.

Fedora to disallow CC0-licensed code

cortana — Thu, 04 Aug 2022 08:27:15 +0000

You'd think there would be a lot of money in it for a patent troll who had received legal advice that they were likely to prevail in such a lawsuit. So perhaps the fact that it hasn't happened yet is indicative...

Fedora to disallow CC0-licensed code

farnz — Tue, 02 Aug 2022 12:37:30 +0000

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.

Fedora to disallow CC0-licensed code

patrakov — Tue, 02 Aug 2022 11:13:05 +0000

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?

Concerns about developers copying code from StackOverflow (Was: Fedora to disallow CC0-licensed code)

medicalwei — Mon, 01 Aug 2022 05:46:37 +0000

Now I have a concern that, developers could copy source code from StackOverflow during development, which license is CC-BY (ranging from 2.5 to 4.0). And in which, CC-BY 4.0 specified:

§2.b.2 Patent and trademark rights are not licensed under this Public License.

This could mean that developers need to be wary when copying source code from such site.

Fedora to disallow CC0-licensed code

landley — Sun, 31 Jul 2022 18:22:26 +0000

"This document" is the copyright license. It does not address trademarks or patents, those would be licensed in a separate document. It does not forbid you from having a license for them.

Fedora to disallow CC0-licensed code

jxself — Sun, 31 Jul 2022 12:32:15 +0000

This isn't unique to the WPDD but is actually from CC0: https://creativecommons.org/publicdomain/zero/1.0/legalcode "...Affirmer hereby grants to each affected person a royalty-free, non transferable, non sublicensable..."

So your questions seems more about why it was made non transferable in CC0.

I don't know that CC has explicitly stated why but my understanding is that, probably not surprisingly, not everything is or can be made transferable in all areas of the world.

This should not be conflated to mean that further sharing of a Work means that someone doesn't get a license, as anyone receiving a copy of the Work would still receive a license directly from the Affirmer, at least to the extent that they're an "affected person."

Fedora to disallow CC0-licensed code

NYKevin — Sun, 31 Jul 2022 08:15:12 +0000

To be fair, there have been credible reports[1] of people using older CC licenses to perform an obscure type of copy*left* trolling. This particular attack is not applicable to any version of CC0 for several different reasons, but the notion that someone will offer intentionally limited terms with the aim of fooling the recipients into violating them is not entirely unfounded.

[1]: https://archive.ph/YWTVT

Fedora to disallow CC0-licensed code

sammythesnake — Sat, 30 Jul 2022 23:40:04 +0000

I'm curious why that proposed not-quite-licence uses terms like "non-transferable" and "non-sublicensable" with respect to rights granted through it. Surely granting those rights as transferable and sublicensable would better fit the declared purpose...?

Fedora to disallow CC0-licensed code

ceplm — Fri, 29 Jul 2022 22:11:23 +0000

Fascinating article. I would love to see this tested in a court.

Fedora to disallow CC0-licensed code

khim — Fri, 29 Jul 2022 10:42:13 +0000

> As the linked article by Scott Peterson says, by explicitly granting the right to "use the software WITHOUT RESTRICTION", the licensor is saying "you don't need a patent licence from me".

Indeed. Without actual court test this legal theory, like any legal theory, would stay purely theoretical, but it's very plausible theory and chances are high that it will hold in court.

This is completely different from explicit refusal to grant you patent license along with the code.

Fedora to disallow CC0-licensed code

Wol — Fri, 29 Jul 2022 00:01:33 +0000

Isn't BSD very similar to MIT?

As the linked article by Scott Peterson says, by explicitly granting the right to "use the software WITHOUT RESTRICTION", the licensor is saying "you don't need a patent licence from me".

Yes the licensor can't be held to the terms of the licence over their own software, but equally they can't change the terms for the licensee without good reason. And suing downstream would be a pretty blatant renege on "without restriction".

Cheers,
Wol

Fedora to disallow CC0-licensed code

rahulsundaram — Thu, 28 Jul 2022 11:55:30 +0000

> How does this differ from BSD?

Not explicitly mentioning patents != explicitly not licensing patents

https://lwn.net/Articles/902667/

Fedora to disallow CC0-licensed code

bpearlmutter — Thu, 28 Jul 2022 10:55:45 +0000

How does this differ from BSD?

$ egrep --count -i patent /usr/share/common-licenses/BSD 
0

Fedora to disallow CC0-licensed code

epa — Thu, 28 Jul 2022 10:44:45 +0000

Right, but this doesn't make any sense because of the different nature of copyright and patents. If you have written some code (and not plagiarized) then you are the copyright owner and a licence from you is sufficient. But any unrelated person, who might never have seen the code in question, can assert patent claims. Perhaps the very broad, poor quality software patents we worried about a decade ago have been neutered by court decisions, but still in principle the code's author and the holders of software patents need have no relationship. So I don't see why Fedora is insisting on a patent licence or waiver from the original author. If they don't hold any software patents and haven't even applied for one, then there is nothing to grant anyhow. And even if they did add a clause to the licence, that would do nothing to lower the risk of patent lawsuits in practice, since that risk comes from third parties.

Fedora to disallow CC0-licensed code

rjones — Wed, 27 Jul 2022 19:38:33 +0000

> So on trademarks, we accept that a sw license doesn't license the trademark. With patents, it seems like an un-solved problem so far. The clause at issue seems harmless to me on plain reading – "this license licenses the software, and just that" which almost shouldn't need to be said, right?

Trademarks, patents, and copyrights get lumped together as "IP", but they really are entirely different bodies of law. There is no real connection between any of them. Might as well lump tort law in with patent and copyright law for all the sense it makes on a technical level.

A copyright license only covers copyright. There is no trademark or patent licenses implied in one, although a patent or trademark license may be implied in how it's distributed or the language in other places. Like if somebody puts GPLv2 code out on the internet and says "Hey, free to use, do whatever you want with it" in their press releases, then goes out and sues you for using it on patent grounds.. the court is unlikely to view that favorably. (That doesn't mean they will have no chance of winning, though.)

The whole thing is a mess. Software patents (or business patents, etc) should of never existed. None of it should of ever existed. Just the result of clever lawyers and dumb judges working for massive corporations in order to screw over anybody that might want to compete with them.

Fedora to disallow CC0-licensed code

rfontana — Wed, 27 Jul 2022 16:16:24 +0000

See my colleague Scott Peterson's article on the patent license in the MIT license:
https://opensource.com/article/18/3/patent-grant-mit-license

Fedora to disallow CC0-licensed code

Wol — Wed, 27 Jul 2022 11:08:56 +0000

> > 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

NYKevin — Wed, 27 Jul 2022 05:50:54 +0000

CC0 code is not subject to copyright protection. There is nothing (besides common decency) stopping me from taking some CC0 code, changing it just enough for copyright to attach (e.g. minor stylistic refactoring, mass variable renaming, etc.), and then slapping my own copyright notice and license on it, and completely removing the CC0 notice altogether. The law (at least in most jurisdictions) doesn't consider that to be infringing, because the previous author has waived all of their exclusive rights in the existing code (although, in some jurisdictions, there might be issues relating to moral rights). Seeing as Fedora can't reasonably be expected to know the full provenance and history of every line of code they distribute, I don't see how they can prevent people from doing something like that.

(Of course, Fedora also can't necessarily stop people from outright *lying* about the copyright license, but at least in that case they respond when someone sends them a DMCA notice or cease & desist letter. With CC0, there's no underlying infringement, so nobody is ever going to tell them!)

Fedora to disallow CC0-licensed code

rfontana — Wed, 27 Jul 2022 01:14:48 +0000

I don't think so, if I understand you correctly. You'd have to convince the original author of the CC0'd code to grant a patent license of some adequate sort.

Fedora to disallow CC0-licensed code

rfontana — Wed, 27 Jul 2022 01:13:38 +0000

This was done without any particular software in mind.

Fedora to disallow CC0-licensed code

rgmoore — Tue, 26 Jul 2022 23:02:12 +0000

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

NYKevin — Tue, 26 Jul 2022 21:22:39 +0000

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

Vipketsh — Tue, 26 Jul 2022 21:12:23 +0000

> 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

Wol — Tue, 26 Jul 2022 19:30:27 +0000

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

tialaramex — Tue, 26 Jul 2022 18:26:23 +0000

You're not going to be able to trace provenance back further. Jean-Philippe Aumasson and DJB came up with SipHash in 2012, the CC0 code is their reference implementation. Obviously Aumasson and DJB aren't going to have patented this, but the nature of patents means that's not necessarily enough.

On the other hand, it's an ARX algorithm, this is not rocket surgery, it seems to me that if you insist on having a C implementation you could just write one, fulfilling the same API as the reference implementation, and acknowledge the algorithm's inventors then write BSD-0 or whatever at the top.

I think this meets the common good requirement (like the Ogg Vorbis and Ogg Opus codecs) so that BSD-0 is appropriate even for someone like me who thinks the GPL is generally better.

Fedora to disallow CC0-licensed code

NYKevin — Tue, 26 Jul 2022 17:37:33 +0000

> 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

Wol — Tue, 26 Jul 2022 16:54:47 +0000

Ouch. Unless we can trace the provenance any earlier, that's 7 years until any alleged patents expire.

Cheers,
Wol

Fedora to disallow CC0-licensed code

jwilk — Tue, 26 Jul 2022 16:29:37 +0000

It's from 2012.

Fedora to disallow CC0-licensed code

mirabilos — Tue, 26 Jul 2022 15:58:52 +0000

Ugh, no… for multiple reasons, but the “no armchair lawyering” is probably the best one, and the one OSI looks at these days.

Fedora to disallow CC0-licensed code

Wol — Tue, 26 Jul 2022 15:31:24 +0000

Stick a clause like "by distributing this software you agree that it contains no patent-eligible material".

Okay, any armchair lawyer stuff could be dangerous, but that would take your software firmly out of the net.

Cheers,
Wol

Fedora to disallow CC0-licensed code

mirabilos — Tue, 26 Jul 2022 15:01:40 +0000

True, this could be the problem.

The MirOS Licence has an explicit permission on use combined with no such wording, and I intend that to be an implicit patent licence (I’d rather not have added an explicit one because software patents are illegal).

Fedora to disallow CC0-licensed code

runekock — Tue, 26 Jul 2022 09:21:03 +0000

Am I right in thinking, that I can take someone else's CC0 code, add a patent grant for my own patents (none), and then it would satisfy Fedora's requirements?

Fedora to disallow CC0-licensed code

Wol — Tue, 26 Jul 2022 09:14:23 +0000

How old is the reference implementation?

Yes I know it would be a pain getting Fedora to introduce a "patent expired" exemption, but if that's the pain point, any code over (is it) 17 years old will be okay.

Cheers,
Wol

Fedora to disallow CC0-licensed code

Wol — Tue, 26 Jul 2022 09:09:37 +0000

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

NYKevin — Tue, 26 Jul 2022 07:25:57 +0000

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

Wol — Tue, 26 Jul 2022 07:13:38 +0000

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

mezcalero — Tue, 26 Jul 2022 07:04:16 +0000

So, one prominent piece of code under CC0 is the SipHash reference implementation. It's embedded in tons of projects. Including in one I myself care for: systemd. I understand it would suffice switching to a differently licensed implementation, right? Anyone knows one with a qualifying Open Source license (in C)?

Lennart

Fedora to disallow CC0-licensed code

pabs — Tue, 26 Jul 2022 04:54:18 +0000

jxself created the Worldwide Public Domain Dedication (WPDD), which includes patent rights.

https://jxself.org/wpdd.shtml

Fedora to disallow CC0-licensed code

NYKevin — Tue, 26 Jul 2022 04:16:21 +0000

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.