4 ms·

Some clarifications: 1. My larger point is that this license simply is not going to interest a lot of people because they don't have patents to begin with. Onl

Some clarifications: 1. My larger point is that this license simply is not going to interest a lot of people because they don't have patents to begin with. Only a minority of contributors will have patent claims, and almost all of them will be commercial contributors. They will simply not be interested in such a license and not contribute to a project using it; for people who don't have patents, the additional patent grant does not make a difference, other than that they're possibly scaring away contributors who do have patents. 2. The point here is that the license may require you to grant rights that you can't grant, ergo you can't contribute work under the license. The license requires you to grant any rights that you hold, but you may not have the right to grant such a sublicense. The Apache license, in contrast, only requires you to grant a license for patent claims that you can actually license. 3. My point here is that the patent grant may be uncomfortably broad especially for commercial contributors in that they give up rights that they're not willing to give up. 4. This is quite different from the Facebook situation. It's one thing to allow others to use your patents; patent holders may be much more reluctant to unilaterally disarm defensively, too. In order to get them to accept such a broad patent grant, you have to convince them that this in their best interest, too. That you can convince people without patents to their name to use the license is irrelevant, as it does not matter whether they use a license with or without a patent grant. If I were a patent holder, why would I give up my defensive rights against third parties along with a patent grant for using the software? How would that serve my interests? 5. So, what are the usage rights if you believe that this is a well-defined legal term? Can you be more specific? How are they related to patent claims? Have you researched whether this would include sublicensing rights and whether sublicensing scenarios need to be considered separately?

jashkenas 9y ago
Let's keep digging in! 1. I feel entirely the opposite way about the appeal of an MIT-style license that includes a patent grant. It's not primarily about making the author feel comfortable — as the author probably doesn't have patents, and doesn't intend to. It's about giving the user of the software confidence. Because the user has no idea what patents the author may or may not hold. At this moment, this is playing out to dramatic effect in Facebook's open source projects — you can see an example here: https://github.com/facebook/graphql/issues/351 https://github.com/facebook/graphql/issues/351 Being able to give users of my software fuller confidence under the Lil License also makes me more interested in using it as an author. It's a virtuous cycle. 2. I'm afraid I still don't quite see the issue you're describing here. If I'm following correctly, the hypothetical case is a contributor who writes a bit of code that exercises a patent that she has a license to, but not permission to sublicense, and then wants to submit that code to an LIL-licensed project. If she's not allowed to sublicense, then she can't contribute that code. She wouldn't be able to contribute it to an Apache project either. 3. It might be. I think that its width is more suitable for most open source projects than the narrower Apache and MPL, but that's something that would make for a good discussion. I'll open a ticket. 4. Again, we're talking past each other a bit. This isn't really trying to appeal to the Facebooks of the world — it's trying to appeal to us regular folk. That I might be able to convince people without patents to use the license is not irrelevant, it's exactly the point. Those people are the target audience. From a user's point of view, the patent grant is still important — because I never know for certain when an author may or may not hold a patent on the code. 5. If I grant you usage rights to a patent, I grant you a license to make, use, sell, import and otherwise transfer implementations of the invention described in that patent. If you think we need to spell out all of those words explicitly, perhaps throwing in "have made" and "offer to sell" as well, feel free to open a ticket and we'll talk about it further.
- rbehrends 9y ago
  1. This wouldn't have changed anything about the GraphQL situation. Unlike with copyrights, getting a patent is expensive. Companies don't do that for fun and they don't give their just acquired patent claims away for free. They may grant a limited license (narrowly scoped to include only the specific software or excluding use for defensive purposes), but there's no point in first paying for a patent and then giving it away for free. 2. Correct, she's barred from contributing, and if she accidentally does so, anyway, she may get into further trouble, because she's violating one license or the other. And no, Apache does not have the problem, because that patent grant is specifically limited to patent claims that contributors have the right to license. Same goes for the OSI BSD+Patent license (not to be confused with Facebook's BSD+Patents license, which has a similar name, but a totally different purpose). 4. And a license will not protect you from that, because unlike with copyright, innocent infringement does not preclude liability. See the folks that are building React variants to avoid the Facebook license: they risk infringing upon patent claims, anyway (as long as they use similar algorithms), and won't have a patent grant to protect them. They can grant any patent-related rights they want, and it'll result in zilch protection. Granting rights only matters if you can actually grant the rights. Without being the actual patent holder, you cannot indemnify anyone. 5. "Opening tickets" is fruitless, because you still end up with a crayon license. What you should do is consult actual lawyers specialized in the field and let them draft a license to your specification. [1] https://opensource.org/licenses/BSDplusPatent https://opensource.org/licenses/BSDplusPatent

jashkenas 9y ago

Let's keep digging in! 1. I feel entirely the opposite way about the appeal of an MIT-style license that includes a patent grant. It's not primarily about making the author feel comfortable — as the author probably doesn't have patents, and doesn't intend to. It's about giving the user of the software confidence. Because the user has no idea what patents the author may or may not hold. At this moment, this is playing out to dramatic effect in Facebook's open source projects — you can see an example here: https://github.com/facebook/graphql/issues/351 https://github.com/facebook/graphql/issues/351 Being able to give users of my software fuller confidence under the Lil License also makes me more interested in using it as an author. It's a virtuous cycle. 2. I'm afraid I still don't quite see the issue you're describing here. If I'm following correctly, the hypothetical case is a contributor who writes a bit of code that exercises a patent that she has a license to, but not permission to sublicense, and then wants to submit that code to an LIL-licensed project. If she's not allowed to sublicense, then she can't contribute that code. She wouldn't be able to contribute it to an Apache project either. 3. It might be. I think that its width is more suitable for most open source projects than the narrower Apache and MPL, but that's something that would make for a good discussion. I'll open a ticket. 4. Again, we're talking past each other a bit. This isn't really trying to appeal to the Facebooks of the world — it's trying to appeal to us regular folk. That I might be able to convince people without patents to use the license is not irrelevant, it's exactly the point. Those people are the target audience. From a user's point of view, the patent grant is still important — because I never know for certain when an author may or may not hold a patent on the code. 5. If I grant you usage rights to a patent, I grant you a license to make, use, sell, import and otherwise transfer implementations of the invention described in that patent. If you think we need to spell out all of those words explicitly, perhaps throwing in "have made" and "offer to sell" as well, feel free to open a ticket and we'll talk about it further.

rbehrends 9y ago
1. This wouldn't have changed anything about the GraphQL situation. Unlike with copyrights, getting a patent is expensive. Companies don't do that for fun and they don't give their just acquired patent claims away for free. They may grant a limited license (narrowly scoped to include only the specific software or excluding use for defensive purposes), but there's no point in first paying for a patent and then giving it away for free. 2. Correct, she's barred from contributing, and if she accidentally does so, anyway, she may get into further trouble, because she's violating one license or the other. And no, Apache does not have the problem, because that patent grant is specifically limited to patent claims that contributors have the right to license. Same goes for the OSI BSD+Patent license (not to be confused with Facebook's BSD+Patents license, which has a similar name, but a totally different purpose). 4. And a license will not protect you from that, because unlike with copyright, innocent infringement does not preclude liability. See the folks that are building React variants to avoid the Facebook license: they risk infringing upon patent claims, anyway (as long as they use similar algorithms), and won't have a patent grant to protect them. They can grant any patent-related rights they want, and it'll result in zilch protection. Granting rights only matters if you can actually grant the rights. Without being the actual patent holder, you cannot indemnify anyone. 5. "Opening tickets" is fruitless, because you still end up with a crayon license. What you should do is consult actual lawyers specialized in the field and let them draft a license to your specification. [1] https://opensource.org/licenses/BSDplusPatent https://opensource.org/licenses/BSDplusPatent