Fedora sours on Creative Commons 'No Rights Reserved' license
Lack of patent rights waiver in CC0 cited as problematic
Fedora, the popular Linux distribution, will no longer incorporate software licensed under CC0, the Creative Commons "No Rights Reserved" license.
In order to support the wide re-use of copyrighted content in new works, CC0 provides authors "a way to waive all their copyright and related rights in their works to the fullest extent allowed by law." The license arose in response to the 1998 Sonny Bono Copyright Term Extension Act (CTEA), which extended the duration of copyright by 20 years at the expense of the public domain.
But CC0 explicitly says the licensor does not waive patent rights, which for free and open source software (FOSS) is a potential problem. That means, for instance as described here, if you use CC0-licensed code in your project, and the author of that code later claims your project is infringing a patent they own regarding that code, your defense will be limited.
Avoiding the use of CC0-licensed code is one way to steer clear of these so-called submarine patents that could years later torpedo you.
In a message to The Fedora Project's mailing list for legal issues, Richard Fontana, a technology lawyer for Red Hat (which sponsors Fedora), explained that while CC0 is cited as a "good license," it won't be for much longer.
"We plan to classify CC0 as allowed-content only, so that CC0 would no longer be allowed for code," said Fontana. "This is a fairly unusual change and may have an impact on a nontrivial number of Fedora packages (that is not clear to me right now), and we may grant a carveout for existing packages that include CC0-covered code."
Fontana said there's a growing consensus in the FOSS community that licenses without any form of patent licensing or forbearance aren't suitable. CC0, he said, like other Creative Commons licenses, includes a clause that explicitly states no patent rights are waived by the licensor.
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In an email to The Register, Bruce Perens, co-founder of the Open Source Initiative, drafter of the original Open Source Definition (OSD), and presently CEO of software-defined radio firm Algoram, said that there's a lot of background to this issue.
Perens explained that the open-source world is finding standards that require RAND – reasonable and non-discriminatory patent licensing – increasingly problematic. As an example, he pointed to Qualcomm, which he said has been pushing within standards organizations like ETSI (the European Telecommunications Standards Institute) for licenses that require patent payments to be considered "open source," which they aren't.
A Qualcomm attorney, he said, "once offered to pay me to write a paper asserting that Richard Stallman had not meant to rule out patent royalties in the GPL. What a big lie that would have been!"
"We want standards to be more accommodating of open source, rather than being instruments for companies to block us, and that means that they have to stop being fertile fields for patent farming," said Perens. "Qualcomm would say they need the patent income to fund their research so that they can bring us things like 5G mobile.
"Given the things that come out of the open source world (for example, GNU Radio, the very software that Qualcomm and other wireless companies use for prototyping), it is more obvious than ever that software patents are more of a hindrance to the industry than otherwise."
Perens said that the OSD implicitly disallows patent royalties, as well as discriminatory patent licensing with royalties, as a consequence of its many terms. But the OSD doesn't explicitly state that every license must contain a patent license.
"I would have included explicit patent language in the OSD if I wrote it today," said Perens. "We've learned quite a lot. The OSD has stood up incredibly well, though, so I am not complaining."
According to Perens, it's now clear that an open source license should include an explicit patent grant.
Fedora is making the first step in disallowing licenses that explicitly deny there is a patent grant. It's a good idea
"Fedora is making the first step," he said, "in disallowing licenses that explicitly deny that there is a patent grant. It's a good idea and should be followed everywhere."
Bradley M. Kuhn, policy fellow at the Software Freedom Conservancy, told The Register in an email, "Patents that [apply to] software are a constant threat to the rights of users and redistributors of FOSS — particularly those that deploy FOSS commercially. That's why SFC opposes the patenting of software entirely."
Kuhn – who emphasized that he speaking from a policy perspective and is not offering legal advice – said that the implicit, and sometimes even explicit, patent license in copyleft licenses like the GPLv2 are very strong.
"We are aware that large patent-holding companies — Oracle in particular, but others as well — have urged FOSS developers to choose licenses such as CC0 that explicitly withhold granting of patent licenses," said Kuhn.
"Since FOSS became popular in the late 1990s, some companies (including, in particular, Microsoft) have sought to monetize FOSS by demanding patent royalty fees for FOSS. We at SFC have been successful in copyleft enforcement actions in such situations to prevent bad actors from shaking down others for patent royalties in these cases, including for Linux itself."
Kuhn continued, "However, if a FOSS license explicitly states that no patent license of any kind is provided, powerful patent holders can run amok — unchecked — against the commercial users of that FOSS. If that FOSS is included in Linux-based software distributions, every distribution user is at risk. My colleague Mr. Fontana has thus made a good recommendation here to the Fedora project. Other distributions may want to consider this issue as well."
Kuhn argues that despite efforts by companies to convince projects to avoid copyleft licenses, software developers should really consider adopting the GPL or copyleft-next rather than relying on a license that is silent on patent licensing or, like CC0, refuses to offer any patent rights waiver. ®