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Sounds stupid. If they want to be legally consistent they'd have to ban all FOSS licenses that don't waive patent rights. By default, patent rights aren't waive

Sounds stupid. If they want to be legally consistent they'd have to ban all FOSS licenses that don't waive patent rights. By default, patent rights aren't waived so explicitly retaining them is just literally stating the obvious. Any lawyer trying to sneak out of patent claims by saying "oh but the FOSS license didn't state they were retaining patent rights..." is just regular legal bullshitting and would not stand long in any half-working justice system.

kazinator 4y ago
I almost agree with you. Except that many FOSS developers who stick a license onto something do not hold any patents, or if they do, not necessarily anything relevant to that code. If you choose a license which explicitly says you're not waiving your patents, it insinuates that you are holding some, and they are used in the project.
- chrismorgan 4y ago
  It insinuates nothing of the sort. It just suggests that you’re using a form license that mentions that. In the specific context of CC0, it’s not a license but rather a public domain dedication (with fallback license) and so anything about patents is by definition out of scope—the document is strictly focused on elements of copyright law. The sentence in question here is just reminding you of that fact.
  - kazinator 4y ago
    I'm just trying to guess the reason why CC0 was singled out. Why would Fedora not want to expunge all licenses that doesn't mention patents at the same time? Probably the reasoning is that most licenses that don't mention patents don't actually have any patents behind them. Most CC0 probably don't either, but since CC0 explicitly says patents are not waived, that's where Fedora decided to start cleaning house. As a free software developer, I just want to know whether this is the way the wind is blowing? Do I have to re-license everything with a different BSD license that incorporates a patent waiver? I see this whole thing as pointless, because even if you don't hold any patents, it's almost impossible to write any significant piece of code without infringing on multiple ridiculous software patents that someone filed somewhere. Just because I add a sentence saying I won't enforce any patents against the users of my code doesn't mean that some third party in the world will not do that. That's probably one reason licenses are mum about patents; patents are a threat coming from someone else which your own waiver doesn't dispel.
    - Dylan16807 4y ago
      > Why would Fedora not want to expunge all licenses that doesn't mention patents at the same time? The idea is that a generic grant of usage rights will cover multiple forms of IP, so it's fine. But if it says "this is copyright only" that's a problem. The issue isn't directly about whether it mentions patents or not.
- msbarnett 4y ago
  > If you choose a license which explicitly says you're not waiving your patents, it insinuates that you are holding some, and they are used in the project. Not anymore than the BSD-no-nuclear clause insinuates that there's a version somewhere that is suitable for being run in the control system of nuclear power plants, it doesn't. CC0 just makes it clear what is in-scope for the license – copyright, not patents, because it's intended as a formalization of public domain and that is not something that can be formalized re: patents – unlike BSD or GPLv2, which implicitly are about copyright but never actually come out and say so (and if you were looking to screw someone over with some patent you hold, you're better off with something that doesn't even mention it, like GPLv2, rather than prompting the lawyers to explicitly ask about patents because the license reminds them that they're not covered)
  - kazinator 4y ago
    Authors who assign to the public domain do so generally because they are mavericks who dislike any sort of permission scheme for the use of information, tied to any sort of authoritarian rules, regardless of how relaxed the permission is. The fallback license in the CC0 is supposed to be just a begrudging inclusion that applies in jurisdictions where the assignment to the public domain isn't upheld; the author who releases a work under the CC0 would be most pleased if there were not such jurisdictions, and the public domain assignment were enough. OK, so then you have this fallback license which says, "I am not granting any use of the patents covering the ideas in this work". That's completely stupid; nobody who ideologically favors the public domain would want to use this. The only rational use for CC0 is by a corporation which has developed some patented technology (e.g. video encoder) and wants to promote a reference implementation, to be used by paying patent licensees for making applications (plus individuals for educational, non-commercial, personal use). If a fallback license of a public domain assignment says anything other than "you can use and redistribute this as you wish", it is not an earnest, genuine, ideological public domain assignment. Someone who wants to make such a grant to the public, yet uses the CC0, has been duped.
deleted 4y ago
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btown 4y ago
Not a lawyer but: is there any case law in which the act of open-source licensing in a not-explicitly-retaining-patent-rights way was found to be a de facto, or implied, waiver of patent rights? https://patentdefenses.klarquist.com/waiver/ https://patentdefenses.klarquist.com/waiver/ points out some situations in which one could implicitly waive patent rights, but specifically in the context of lying to standards-setting organizations, it would seem? If a license has never been considered an implicit waiver, it seems overkill to say that "a license that says nothing about rights is materially better than a license that explicitly does not waive rights," no?
- msbarnett 4y ago
  > If a license has never been considered an implicit waiver, it seems overkill to say that "a license that says nothing about rights is materially better than a license that explicitly does not waive rights," no? Yes, and I suspect a lawyer for a sufficiently-malicious GPLv2 dev looking to submarine an org could probably even take it further – because the FSF felt it was necessary to create GPLv3 in order to explicitly grant patent rights to GPLv3 licensors of the code, choosing to continue to use GPLv2 like my client the malicious-submarine-dev did, instead of relicensing in GPLv3, was done precisely in order to signal that they are expressly choosing to grant a copyright license but not a patent license to users. Singling out CC0 seems arbitrary – if Fedora wants patent certainty, they should be sticking to things like GPLv3 and Apache

kazinator 4y ago

I almost agree with you. Except that many FOSS developers who stick a license onto something do not hold any patents, or if they do, not necessarily anything relevant to that code. If you choose a license which explicitly says you're not waiving your patents, it insinuates that you are holding some, and they are used in the project.

chrismorgan 4y ago
It insinuates nothing of the sort. It just suggests that you’re using a form license that mentions that. In the specific context of CC0, it’s not a license but rather a public domain dedication (with fallback license) and so anything about patents is by definition out of scope—the document is strictly focused on elements of copyright law. The sentence in question here is just reminding you of that fact.
- kazinator 4y ago
  I'm just trying to guess the reason why CC0 was singled out. Why would Fedora not want to expunge all licenses that doesn't mention patents at the same time? Probably the reasoning is that most licenses that don't mention patents don't actually have any patents behind them. Most CC0 probably don't either, but since CC0 explicitly says patents are not waived, that's where Fedora decided to start cleaning house. As a free software developer, I just want to know whether this is the way the wind is blowing? Do I have to re-license everything with a different BSD license that incorporates a patent waiver? I see this whole thing as pointless, because even if you don't hold any patents, it's almost impossible to write any significant piece of code without infringing on multiple ridiculous software patents that someone filed somewhere. Just because I add a sentence saying I won't enforce any patents against the users of my code doesn't mean that some third party in the world will not do that. That's probably one reason licenses are mum about patents; patents are a threat coming from someone else which your own waiver doesn't dispel.
  - Dylan16807 4y ago
    > Why would Fedora not want to expunge all licenses that doesn't mention patents at the same time? The idea is that a generic grant of usage rights will cover multiple forms of IP, so it's fine. But if it says "this is copyright only" that's a problem. The issue isn't directly about whether it mentions patents or not.
msbarnett 4y ago
> If you choose a license which explicitly says you're not waiving your patents, it insinuates that you are holding some, and they are used in the project. Not anymore than the BSD-no-nuclear clause insinuates that there's a version somewhere that is suitable for being run in the control system of nuclear power plants, it doesn't. CC0 just makes it clear what is in-scope for the license – copyright, not patents, because it's intended as a formalization of public domain and that is not something that can be formalized re: patents – unlike BSD or GPLv2, which implicitly are about copyright but never actually come out and say so (and if you were looking to screw someone over with some patent you hold, you're better off with something that doesn't even mention it, like GPLv2, rather than prompting the lawyers to explicitly ask about patents because the license reminds them that they're not covered)
- kazinator 4y ago
  Authors who assign to the public domain do so generally because they are mavericks who dislike any sort of permission scheme for the use of information, tied to any sort of authoritarian rules, regardless of how relaxed the permission is. The fallback license in the CC0 is supposed to be just a begrudging inclusion that applies in jurisdictions where the assignment to the public domain isn't upheld; the author who releases a work under the CC0 would be most pleased if there were not such jurisdictions, and the public domain assignment were enough. OK, so then you have this fallback license which says, "I am not granting any use of the patents covering the ideas in this work". That's completely stupid; nobody who ideologically favors the public domain would want to use this. The only rational use for CC0 is by a corporation which has developed some patented technology (e.g. video encoder) and wants to promote a reference implementation, to be used by paying patent licensees for making applications (plus individuals for educational, non-commercial, personal use). If a fallback license of a public domain assignment says anything other than "you can use and redistribute this as you wish", it is not an earnest, genuine, ideological public domain assignment. Someone who wants to make such a grant to the public, yet uses the CC0, has been duped.

deleted 4y ago

[deleted]

btown 4y ago

Not a lawyer but: is there any case law in which the act of open-source licensing in a not-explicitly-retaining-patent-rights way was found to be a de facto, or implied, waiver of patent rights? https://patentdefenses.klarquist.com/waiver/ https://patentdefenses.klarquist.com/waiver/ points out some situations in which one could implicitly waive patent rights, but specifically in the context of lying to standards-setting organizations, it would seem? If a license has never been considered an implicit waiver, it seems overkill to say that "a license that says nothing about rights is materially better than a license that explicitly does not waive rights," no?

msbarnett 4y ago
> If a license has never been considered an implicit waiver, it seems overkill to say that "a license that says nothing about rights is materially better than a license that explicitly does not waive rights," no? Yes, and I suspect a lawyer for a sufficiently-malicious GPLv2 dev looking to submarine an org could probably even take it further – because the FSF felt it was necessary to create GPLv3 in order to explicitly grant patent rights to GPLv3 licensors of the code, choosing to continue to use GPLv2 like my client the malicious-submarine-dev did, instead of relicensing in GPLv3, was done precisely in order to signal that they are expressly choosing to grant a copyright license but not a patent license to users. Singling out CC0 seems arbitrary – if Fedora wants patent certainty, they should be sticking to things like GPLv3 and Apache