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The stated reason seems self-refuting within its own text. The quoted section of CC0 doesn't "preclude any form of patent licensing or patent forbearance". It j

by gojomo 4y ago

The stated reason seems self-refuting within its own text. The quoted section of CC0 doesn't "preclude any form of patent licensing or patent forbearance". It just makes clear that CC0 is silent on those issues, allowing other documents/tradtions to govern. If instead the real reason is Fedora wants all licenses to include explicit "patent licensing or patent forbearance", that's different than the rationale excerpted by LWN here.

deleted 4y ago
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hsn915 4y ago
"Please accept this giant wooden horse! We don't preclude the possibility that it's sincere gift given in good faith!".
josephcsible 4y ago
> The quoted section of CC0 doesn't "preclude any form of patent licensing or patent forbearance". But it does do exactly that. > It just makes clear that CC0 is silent on those issues It doesn't do that, because that's impossible to do. Saying "I'm not talking about X" is talking about X.
- gojomo 4y ago
  It doesn’t ‘preclude’ anything by disclaiming implications either way. It leaves all possibilities open, which is the opposite of ‘precluding’. Someone can absolutely say “Though some might think my prior words endorse or reject X, let me be clear I don’t endorse or reject X.” You can mention X, especially in a aspires-to-be-rigorous context like law, without committing to a treatment.
  - josephcsible 4y ago
    Sure, but that's not what CC0 says. CC0 says "No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, licensed or otherwise affected by this document.", which is more like saying "I reject X."
    - gojomo 4y ago
      "by this document" limits the effect such that it doesn't [emphasis added] "PRECLUDE ANY FORM OF PATENT LICENSING or patent forbearance" via other documents/mechanisms. (It does preclude one particular implied-permission interpretation, as others have helpfully pointed out.)
      - josephcsible 4y ago
        > (It does preclude one particular implied-permission interpretation that others have helpfully pointed out.) Yes, and this seems to be the entire reason that Fedora is revoking approval of the license.
        gojomo 4y ago
        And if Fontana had written, and LWN excerpted, a statement like... "The reason for the change: Over a long period of time a consensus has been building in FOSS that licenses that EXPLICITLY DISCLAIM PATENT FORBEARANCE cannot be considered FOSS." ...I'd have not flagged any apparent textual contradiction – and understood the rationale better. It was the broad, unqualified allegation that CC0's text would "preclude any form of patent licensing or patent forbearance" that created the impression of mismatch between reasoning and literal text. (And note: submission link has changed since I commented from a tiny excerpt of Fontana's announcement, and the full email.)
      - dragonwriter 4y ago
        The problem is that you are arguing about something that is not the issue. The issue isn't “via other documents/mechanisms”, the issue is whether it precludes patent grants that may be necessary to exercises the permissions in the license from being found to be granted by the license. Anything that grants permissions for particular but doesn't rule a grant of specific rights (at issue at the moment, patent, but the same would be true of any other specific rights) necessary to that use is most naturally read as granting all rights the licensor has power to grant necessary to the use explicitly licensed (and also as a claim that the licensor has a right to grant all rights necessary for that use.) If it specifically excludes particular rights that may be necessary to that use, then the license itself is on its face insufficient for the use it appears to grant without a separate license for the other rights or independent evidence that no rights which would be an obstacle are held anywhere else.
  - dragonwriter 4y ago
    > It doesn’t ‘preclude’ anything by disclaiming implications either way. Yes, it does. A license that gives permission to use software but does not enumerate specific rights that the licensor holds which may be necessary to use the software will most naturally be read as licensing all necessary rights held by the licensor. A license which explicitly disclaims any grant of patent rights can only be read as...not granting patent rights held by the licensor, even if they may be necessary to use the software. Thus, such a grant which would otherwise be reasonably included is, instead, explicitly precluded.
pessimizer 4y ago
I think it's reasonable. Other licenses use the traditional method of being silent (not saying anything) about patents, so if someone had granted the right to run the code without mentioning a patent, I bet it'd be hard to find a judge who would decide that the right to the patent (or at least to not have it enforced) didn't come with the rights given to the code. Whereas with CC0 it's explicit that the same person who granted you the code could sue you for running it. There's no room for interpretation.
zerocrates 4y ago
There's a theory/hope that putting out open-source code using a license that's silent as to patents acts as an implicit waiver: that a court would say, "you knew when you put this out there what open-source was, that people would use your code and therefore perform the patent; you acted like you were giving them permission to do so and they have justifiably relied on that, so you're barred from turning around and going after them on patent claims." As far as I know, this is totally untested but it's at least plausible. In a situation like this where the license explicitly says "this is not a waiver of any patent rights" that argument is going to be pretty hard to make fly. The whole area is interesting for sure. The very presence of explicit patent grants/waivers/forbearance in later licenses could be argued as evidence that a waiver isn't commonly understood to automatically come with the license where it's totally silent. But that's still a different world from the "definitely not a waiver" situation set up by CC0.
- gojomo 4y ago
  Thanks, that’s a theory making Fedora’s statements somewhat more understandable than they were with just the LWN excerpt. Namely, that other licenses, by being silent, might be construable as implying patent permissions. Perhaps the Creative Commons lawyers erred by mentioning patents at all, and they should issue a corrected “CC0v2”!
  - mlinksva 4y ago
    It was intentional and well intended, so that CC0-1.0 use (e.g. for research datasets) would not be blocked by academic tech transfer offices. But yes, they should issue a CC1-1.0 that is not copyright-only.
- kevin_b_er 4y ago
  Read the opening license line for BSD: "Redistribution and use in source and binary forms, with or without modification, are permitted" This feels incompatible with a spontaneous patent claim, because otherwise "use" is not permitted once a patent right is asserted. The notion of open source is under threat from patents being used by the likes of Facebook, who've released BSD code then immediately claimed a special patent license in a parallel that disavowed "redistribution and use" unless the patent license also applied. So we can say that a license that explicitly doesn't include patent permission doesn't meet the 4 freedoms. > The freedom to run the program as you wish, for any purpose. A patent overrides this. > The freedom to study how the program works, and change it so it does your computing as you wish. A patent overrides this, at least the second half. > The freedom to redistribute copies so you can help your neighbor. A patent overrides this. > The freedom to distribute copies of your modified versions to others. A patent overrides this. Facebook's React library was an example of this. BSD but with a non-free patent license that ran against those freedoms. So it was not really open source.

by gojomo 4y ago

deleted 4y ago

[deleted]

hsn915 4y ago

"Please accept this giant wooden horse! We don't preclude the possibility that it's sincere gift given in good faith!".

josephcsible 4y ago

> The quoted section of CC0 doesn't "preclude any form of patent licensing or patent forbearance". But it does do exactly that. > It just makes clear that CC0 is silent on those issues It doesn't do that, because that's impossible to do. Saying "I'm not talking about X" is talking about X.

gojomo 4y ago
It doesn’t ‘preclude’ anything by disclaiming implications either way. It leaves all possibilities open, which is the opposite of ‘precluding’. Someone can absolutely say “Though some might think my prior words endorse or reject X, let me be clear I don’t endorse or reject X.” You can mention X, especially in a aspires-to-be-rigorous context like law, without committing to a treatment.
- josephcsible 4y ago
  Sure, but that's not what CC0 says. CC0 says "No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, licensed or otherwise affected by this document.", which is more like saying "I reject X."
  - gojomo 4y ago
    "by this document" limits the effect such that it doesn't [emphasis added] "PRECLUDE ANY FORM OF PATENT LICENSING or patent forbearance" via other documents/mechanisms. (It does preclude one particular implied-permission interpretation, as others have helpfully pointed out.)
    - josephcsible 4y ago
      > (It does preclude one particular implied-permission interpretation that others have helpfully pointed out.) Yes, and this seems to be the entire reason that Fedora is revoking approval of the license.
      - gojomo 4y ago
        And if Fontana had written, and LWN excerpted, a statement like... "The reason for the change: Over a long period of time a consensus has been building in FOSS that licenses that EXPLICITLY DISCLAIM PATENT FORBEARANCE cannot be considered FOSS." ...I'd have not flagged any apparent textual contradiction – and understood the rationale better. It was the broad, unqualified allegation that CC0's text would "preclude any form of patent licensing or patent forbearance" that created the impression of mismatch between reasoning and literal text. (And note: submission link has changed since I commented from a tiny excerpt of Fontana's announcement, and the full email.)
    - dragonwriter 4y ago
      The problem is that you are arguing about something that is not the issue. The issue isn't “via other documents/mechanisms”, the issue is whether it precludes patent grants that may be necessary to exercises the permissions in the license from being found to be granted by the license. Anything that grants permissions for particular but doesn't rule a grant of specific rights (at issue at the moment, patent, but the same would be true of any other specific rights) necessary to that use is most naturally read as granting all rights the licensor has power to grant necessary to the use explicitly licensed (and also as a claim that the licensor has a right to grant all rights necessary for that use.) If it specifically excludes particular rights that may be necessary to that use, then the license itself is on its face insufficient for the use it appears to grant without a separate license for the other rights or independent evidence that no rights which would be an obstacle are held anywhere else.
- dragonwriter 4y ago
  > It doesn’t ‘preclude’ anything by disclaiming implications either way. Yes, it does. A license that gives permission to use software but does not enumerate specific rights that the licensor holds which may be necessary to use the software will most naturally be read as licensing all necessary rights held by the licensor. A license which explicitly disclaims any grant of patent rights can only be read as...not granting patent rights held by the licensor, even if they may be necessary to use the software. Thus, such a grant which would otherwise be reasonably included is, instead, explicitly precluded.

pessimizer 4y ago

I think it's reasonable. Other licenses use the traditional method of being silent (not saying anything) about patents, so if someone had granted the right to run the code without mentioning a patent, I bet it'd be hard to find a judge who would decide that the right to the patent (or at least to not have it enforced) didn't come with the rights given to the code. Whereas with CC0 it's explicit that the same person who granted you the code could sue you for running it. There's no room for interpretation.

zerocrates 4y ago

There's a theory/hope that putting out open-source code using a license that's silent as to patents acts as an implicit waiver: that a court would say, "you knew when you put this out there what open-source was, that people would use your code and therefore perform the patent; you acted like you were giving them permission to do so and they have justifiably relied on that, so you're barred from turning around and going after them on patent claims." As far as I know, this is totally untested but it's at least plausible. In a situation like this where the license explicitly says "this is not a waiver of any patent rights" that argument is going to be pretty hard to make fly. The whole area is interesting for sure. The very presence of explicit patent grants/waivers/forbearance in later licenses could be argued as evidence that a waiver isn't commonly understood to automatically come with the license where it's totally silent. But that's still a different world from the "definitely not a waiver" situation set up by CC0.

gojomo 4y ago
Thanks, that’s a theory making Fedora’s statements somewhat more understandable than they were with just the LWN excerpt. Namely, that other licenses, by being silent, might be construable as implying patent permissions. Perhaps the Creative Commons lawyers erred by mentioning patents at all, and they should issue a corrected “CC0v2”!
- mlinksva 4y ago
  It was intentional and well intended, so that CC0-1.0 use (e.g. for research datasets) would not be blocked by academic tech transfer offices. But yes, they should issue a CC1-1.0 that is not copyright-only.
kevin_b_er 4y ago
Read the opening license line for BSD: "Redistribution and use in source and binary forms, with or without modification, are permitted" This feels incompatible with a spontaneous patent claim, because otherwise "use" is not permitted once a patent right is asserted. The notion of open source is under threat from patents being used by the likes of Facebook, who've released BSD code then immediately claimed a special patent license in a parallel that disavowed "redistribution and use" unless the patent license also applied. So we can say that a license that explicitly doesn't include patent permission doesn't meet the 4 freedoms. > The freedom to run the program as you wish, for any purpose. A patent overrides this. > The freedom to study how the program works, and change it so it does your computing as you wish. A patent overrides this, at least the second half. > The freedom to redistribute copies so you can help your neighbor. A patent overrides this. > The freedom to distribute copies of your modified versions to others. A patent overrides this. Facebook's React library was an example of this. BSD but with a non-free patent license that ran against those freedoms. So it was not really open source.