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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 kne

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.
- spiffytech 4y ago
  The BSD license is clear that it's a copyright license. IANAL, but I expect "this isn't a patent license and its terms don't cover our patents" would stand up in court. Which is how we get to the GP's question of implied license.
  - kazinator 4y ago
    If the plaintiff seeks to stop the defendent from engaging in "redistribution and use", by invoking their patent, but the plaintiff put a license on the code whose wording allows "redistribution and use" in any form without any restrictions, I don't see how the court could just ignore that.
- kazinator 4y ago
  I'm not sure a patent would override all those things if it's being asserted by the same entity which put the license on the code. If the patent holder puts a "redistribution and use are permitted", that can be deemed as an IP license in every relevant way, including patent and trademark grant; it's not just copyright. "Use" means carrying out the patented functionality; permission to "use" is tantamount to permission to apply the patented algorithm to one's data to reap its benefit.

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.

spiffytech 4y ago
The BSD license is clear that it's a copyright license. IANAL, but I expect "this isn't a patent license and its terms don't cover our patents" would stand up in court. Which is how we get to the GP's question of implied license.
- kazinator 4y ago
  If the plaintiff seeks to stop the defendent from engaging in "redistribution and use", by invoking their patent, but the plaintiff put a license on the code whose wording allows "redistribution and use" in any form without any restrictions, I don't see how the court could just ignore that.
kazinator 4y ago
I'm not sure a patent would override all those things if it's being asserted by the same entity which put the license on the code. If the patent holder puts a "redistribution and use are permitted", that can be deemed as an IP license in every relevant way, including patent and trademark grant; it's not just copyright. "Use" means carrying out the patented functionality; permission to "use" is tantamount to permission to apply the patented algorithm to one's data to reap its benefit.