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Working Toward a Patent-Agnostic Open Source License

timothy posted more than 5 years ago | from the balancing-interests dept.

Patents 124

Glyn Moody writes "Are there ever circumstances when software patents that require payment might be permitted by an open source license? That's the question posed by a new license that is being submitted to the Open Source Initiative (OSI) for review. The MPEG Working Group wants to release a reference implementation of the new MPEG eXtensible Middleware (MXM) standard as open source, but it also wants to be able to sell patent licenses. If it can't, it might not make the implementation open source; but if it does, it might undermine the fight against software patent proliferation."

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Software patents. (4, Interesting)

Z00L00K (682162) | more than 5 years ago | (#27524931)

It's just a way of trying to make software patents more valid.

I would say that any patent that lacks hardware (chemical compound or physical device) wouldn't be valid.

Re:Software patents. (4, Interesting)

kansas1051 (720008) | more than 5 years ago | (#27525011)

I would say that any patent that lacks hardware (chemical compound or physical device) wouldn't be valid.

Few patents target software per se. Most "software patents" actually claim (cover) computing hardware that implements some allegedly novel/non-obvious functionality. In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?

Re:Software patents. (2, Interesting)

Samschnooks (1415697) | more than 5 years ago | (#27525197)

In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?

Then a mystery writer could patent a method of committing a crime and the method of solving the crime. Royalties from the mafia and from the police! Woohoo!

Re:Software patents. (3, Interesting)

Zordak (123132) | more than 5 years ago | (#27526213)

Well, I guess to the extent that murdering somebody is considered "transforming matter" under Bilski, you could patent the murder process. But I don't know that there's a good way to claim solving a crime under Bilski, unless you're claiming some specific technique like DNA analysis, which I'm sure was patented at some point.

Re:Software patents. (3, Funny)

mrsteveman1 (1010381) | more than 5 years ago | (#27526567)

If it happened in the library with a candle stick, you owe me money :)

Patenting the illegal (1)

AliasMarlowe (1042386) | more than 5 years ago | (#27528885)

Well, I guess to the extent that murdering somebody is considered "transforming matter" under Bilski, you could patent the murder process.

I don't think you can get a patent granted for something which is intrinsically illegal, such as committing murder. However, you might be able to patent a method and apparatus for killing a human, provided it is presented as a solution for the task of lawful killing (such as carrying out a death sentence given by a competent court or court-martial). However, we humans are an inventive and dastardly lot, so it might take real creativity to come up with a killing method which is not already in the public domain.

Anyway, if someone were infringing my patent by deliberately killing people, I'd be very wary of taking them on in any merely legal fashion.

Re:Software patents. (1)

Hal_Porter (817932) | more than 5 years ago | (#27529897)

In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?

Then a mystery writer could patent a method of committing a crime and the method of solving the crime. Royalties from the mafia and from the police! Woohoo!

This post doesn't really need the "IANAL but doesn't that mean..." at the start.

wrong word in article title (0, Offtopic)

Anonymous Coward | more than 5 years ago | (#27525297)

...that "agnostic" is the wrong word in this context. Agnostics believe that neither the existence nor the non-existence of God can be proven.

The word you wanted is probably "apathetic," which means "doesn't care."

Yes, I know I am being a Nazi. But honestly, would it KILL you to learn what these words mean before you use post them on a widely read public forum?

Re:wrong word in article title (5, Informative)

Mr. Slippery (47854) | more than 5 years ago | (#27526743)

Agnostics believe that neither the existence nor the non-existence of God can be proven.

"Agnostic" comes from roots meaning "not knowing", but its use in the sense of "not having an opinion about" is well-established [merriam-webster.com] .

But honestly, would it KILL you to learn what these words mean before you use post them on a widely read public forum?

Would it kill you to check a dictionary before trying to go all vocabulary-Nazi on someone? :-)

Re:wrong word in article title (1)

AP31R0N (723649) | more than 5 years ago | (#27530299)

Meh. Dictionaries are descriptivist, meaning they record HOW a word is (ab)used... not what the word actually means. Saying it's ok because "it's in the dictionary" is like saying "but all my friends are doing it". Agnostic means "not knowing", "without knowledge". Decimate means "destroy/kill one tenth", not "completely destroy". Just because people use it that way doesn't make it right. Documenting the mistake doesn't make it less of a mistake.

When we dilute a word's meaning we lose something. We lose the ability to say what the word originally meant with just that word. Hence we say things like "Agnostic in the 'without knowledge' sense". Instead we should have just used the word that matched what we meant to say. Something like "neutral", perhaps.

"But but but living language"

Re:wrong word in article title (1)

metamatic (202216) | more than 5 years ago | (#27532371)

Would it kill you to check a dictionary before trying to go all vocabulary-Nazi on someone?

Would it kill you to use a serious dictionary rather than the piece of crap known as Webster's?

Re:Software patents. (2, Interesting)

Schraegstrichpunkt (931443) | more than 5 years ago | (#27525865)

The problem isn't really patents per se, but patent infringement lawsuits and the resulting court orders. It would make more sense to continue to issue patents as usual, but to amend patent law so that it's unenforceable under certain circumstances deemed problematic (e.g. mere software). Similarly, you could have different durations of enforceability depending on the type of infringement.

Patent law can be useful, but it needs to be far more carefully controlled than it is right now.

Re:Software patents. (1)

bit01 (644603) | more than 5 years ago | (#27527405)

The problem isn't really patents per se

Not true. Patents and the patent system have very real costs associated associated with them. Not just the sticker price but the chilling effect and the "guilty until proven innocent" legal minefield.

Patent law can be useful, but it needs to be far more carefully controlled than it is right now.

There is very little scientific evidence for patent law being useful. Mostly it's just self-serving PTO handwaving. Did you know they spend huge sums of money on marketing themselves, sorry "awareness raising" (gack)? See Dutch PTO interview [managingip.com] . Large areas of intellectual work are not covered by "IP" law (e.g. deciding where to site a business or domestic architectural design) and yet seem to get along just fine.

---

Scientific, evidence based IP law. Now there's a thought.

Re:Software patents. (1)

Pseudonym (62607) | more than 5 years ago | (#27527115)

I don't make computer hardware, so on a non-legal reading, I'd say I'm in the clear.

Just goes to show that legalese is a different language.

Re:Software patents. (1)

Draek (916851) | more than 5 years ago | (#27528103)

In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?

None, of course. Which is why neither should be allowed, as the FPGA is merely an implementation of a mathematical algorithm designed to perform function X, and mathematics itself cannot be patented.

Wish we could convince a judge of *that* one, however, it'd get rid of an awful lot of stupid patents and make the IT world a much nicer place to work in.

Re:Software patents. (1)

dave87656 (1179347) | more than 5 years ago | (#27528331)

Few patents target software per se.

Many patents begin with the text "Method for ..." and do not reference hardware at all.

Re:Software patents. (1)

AliasMarlowe (1042386) | more than 5 years ago | (#27528891)

Many patents begin with the text "Method for ..." and do not reference hardware at all.

But many of them go on to describe a method for transforming a material. The Bilski ruling explicitly allows transformation of materials to be patented.

Re:Software patents. (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27525149)

No patents on any complex system has any excuse to exist in any domain.

Patents destroy creativity in Software, but also in all Life Sciences.

Patents have long outlasted any kind of usefulness (unless you count helping being evil as "usefulness"

Re:Software patents. (0)

TheVelvetFlamebait (986083) | more than 5 years ago | (#27526689)

Patents destroy creativity in Software, but also in all Life Sciences.

Say what? Software patents "destroy creativity"? Software patents can block your program from being distributed, but even assuming that blocking "creative" programs is equivalent to destroying creativity, it would only destroy the kind of creativity that produces code already created and patented.

Not that I support software patents, by any means, it's just that your argument is ridiculous. And since you deign not to elaborate on your other arguments, I can only assume that they're all ridiculous as well.

Re:Software patents. (1)

lgw (121541) | more than 5 years ago | (#27527057)

Further, 17 years later the problem goes away. Yeah, it sounds like forever in internet years, but the big lump of ridiculous software patents on everything obvious is working its way through that system, and in less than a decade now most of the obvious crap will be covered by expired patents, which is the best possible portection against stupid future patents.

Re:Software patents. (1)

Shalcker (989572) | more than 5 years ago | (#27528597)

Or they'll lobby for extension of software patents as they did with copyrights.

Re:Software patents. (1)

Theaetetus (590071) | more than 5 years ago | (#27525319)

It's just a way of trying to make software patents more valid.

I would say that any patent that lacks hardware (chemical compound or physical device) wouldn't be valid.

Good thing that most software patents are actually claiming computer-readable medium encoded with program instructions for performing the steps of x, a system comprising a specially-programmed computer to perform the steps of x, and/or an apparatus comprising a processor, memory element, and means for performing x.

Re:Software patents. (2, Interesting)

h4rr4r (612664) | more than 5 years ago | (#27525633)

Then why is does their patent on a system comprising a specially-programmed computer to perform the steps of x, and/or an apparatus comprising a processor, memory element, and means for performing x, prevent me from makeing my own?

It would be like patenting the claw hammer and suggesting that you now own the patent on all devices that can pound nails into walls.

Re:Software patents. (3, Informative)

ShieldW0lf (601553) | more than 5 years ago | (#27525757)

Then why is does their patent on a system comprising a specially-programmed computer to perform the steps of x, and/or an apparatus comprising a processor, memory element, and means for performing x, prevent me from making my own?

Because the purpose of patents is control. Because in this society, power comes from creating scarcity, controlling supply and holding the threat of deprivation over everyone's head, not from creating wealth and being a treasure to all humanity. When you have to pay the powers that be for permission not to act stupid, it's pretty hard to knock them off their roost. Course, that creates waste, violence and poverty in the short term and eventually calamity, war and utter collapse of civilization, but you've got to take the bad with the good...

Did you think they served some other purpose?

Re:Software patents. (1)

mabhatter654 (561290) | more than 5 years ago | (#27527207)

That's my problem with software patents also. I look at software like cookbooks, many people might have their own take on Apple pie.. but we have trademarks and copyright for that. Patents are for inventions... the big problem in case law is that the court assumes you can "choose" not to infringe because one of the key functions of patent is full disclosure. But software patents allow the company to only "describe" the process but not show the code. So the net effect is exactly like patenting "hammering devices" because the courts can't see inside the box to test patents because of copyright and trade secret that includes software.

Re:Software patents. (1)

Theaetetus (590071) | more than 5 years ago | (#27527303)

That's my problem with software patents also. I look at software like cookbooks, many people might have their own take on Apple pie.. but we have trademarks and copyright for that. Patents are for inventions... the big problem in case law is that the court assumes you can "choose" not to infringe because one of the key functions of patent is full disclosure. But software patents allow the company to only "describe" the process but not show the code.

I think you don't understand what patents are protecting. Patents don't protect the code - that's copyright. Patents are for inventions - the process that they're "describing". So whether you do the code in java, C, Perl, or whitespace, you're still infringing, even if you wouldn't infringe on the copyright. I think you're mistaking the two.

And you also seem to be implying that "software patents" are different from other patents in their disclosure requirements, but that's not true either. Again, I think you're confusing copyright and patents. Courts don't need to see "inside the box" because you're not claiming the specific operations, you're claiming the method and results.

Re:Software patents. (1)

Theaetetus (590071) | more than 5 years ago | (#27527277)

Then why is does their patent on a system comprising a specially-programmed computer to perform the steps of x, and/or an apparatus comprising a processor, memory element, and means for performing x, prevent me from makeing my own?

It would be like patenting the claw hammer and suggesting that you now own the patent on all devices that can pound nails into walls.

Because you don't understand patents, and you're trying to claim an analogy that doesn't apply? Look, if the claim is "a claw hammer", it's not "a method of pounding nails into walls". I'm happen to go into specifics if you'd care to raise any - it's just that your analogy is flat out incorrect, so there's really nothing to argue other than that you're wrong, and systems aren't methods.

Re:Software patents. (1)

h4rr4r (612664) | more than 5 years ago | (#27532587)

Then how can they pantent mpeg?
How can my mpeg decoder infringe on theirs if I have never seen their code.

A system to decode mpeg is the same as a system to pound nails in walls. Systems should not be patentable only implementations.

Re:Software patents. (1)

Theaetetus (590071) | more than 5 years ago | (#27533481)

Then how can they pantent mpeg? How can my mpeg decoder infringe on theirs if I have never seen their code.

Because you don't understand the difference between copyright and patents. You don't have to have seen their specific implementation to be infringing their patent. And if you haven't seen their specific implementation, you can't infringe their copyright.
Just in case that wasn't clear: patents are on the idea, copyright is on the implementation. If you do the exact same idea as someone else, but in a different implementation - C vs. Java, big endian vs. little endian - you are not infringing their copyright, but you may be infringing their patent.

Systems should not be patentable only implementations.

Systems are implementations. You're thinking of methods.

Compromise (0)

Anonymous Coward | more than 5 years ago | (#27528281)

A fair compromise would be to license the software in such a way that it sets a flat price on the licensing of the software OR limits the number of times the patent may be used to collect licensing fees before entering public domain

What does it mean? (2, Interesting)

BradleyUffner (103496) | more than 5 years ago | (#27524963)

Does this mean that the source code would be freely available, but that you couldn't use it without paying them? I skimmed the artical and linked pages, but can't figure out what this would actually mean.

Re:What does it mean? (2, Informative)

Hognoxious (631665) | more than 5 years ago | (#27525049)

I share your confusion. If the source is open, I can compile and run it, carve it onto rocks or tattoo it on my butt. If a patent (or anything else) says I can't do that, then how is it open source?

Re:What does it mean? (2, Insightful)

harry666t (1062422) | more than 5 years ago | (#27525283)

If a patent (or anything else) says I can't do that, then how is it open source?

Open source yes, free software no.

That's what Stallman was talking about when he said he didn't like the new term.

harry@pierdonka:~$ vrms
No non-free or contrib packages installed on pierdonka! rms would be proud.

Re:What does it mean? (4, Insightful)

spitzak (4019) | more than 5 years ago | (#27525539)

It really seems to me that in common use "Open Source" *does* now mean you are free to do whatever you want with the source. Just being able to *look* at the source is not called Open Source, it is probably best to call it "published source code" or "the source code is available for you to look at".

"Free Software" means the enforced-freeness of the GPL, which is a subset of Open Source.

So for most uses this is neither Open Source or Free Software.

Re:What does it mean? (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27526063)

"Free Software" means the enforced-freeness of the GPL, which is a subset of Open Source.

Could something under the BSD or MIT license then be considered "free" (libre)? Is it the enforcement of the GPL that makes it software under it "free" or is it the lack of restrictions?

[not trolling, just like the intellectual exercise this gives my brain]

Re:What does it mean? (1)

spitzak (4019) | more than 5 years ago | (#27527235)

Yes I believe the BSD and MIT licenses are "free".

However I think the term "Free Software", due to the FSF, has come to mean GPL software for most people here, while "Open Source" means both GPL and other open source licenses. Yes I know that is not what the FSF says officially, but it seems to be the normal response here to the terms.

Re:What does it mean? (1)

david_thornley (598059) | more than 5 years ago | (#27526069)

Free Software is pretty close to synonymous with Open Source Software, although there are a few differences. (Hop on over to the FSF site and read the philosophy section and you'll see.) In any case, source code with patent restrictions is not either Free nor Open Source in the normal senses.

Re:What does it mean? (2, Informative)

spitzak (4019) | more than 5 years ago | (#27527291)

In fact the FSF page has this:

Another misunderstanding of "open source" is the idea that it means "not using the GNU GPL". It tends to accompany a misunderstanding of "free software", equating it to "GPL-covered software". These are equally mistaken, since the GNU GPL is considered an open source license, and most of the open source licenses are considered free software licenses.

That directly addresses what I think a lot of people believe the difference is between "open source" and "free software". If I encounter the terms in a post here I usually make that assumption. Yes I know it is wrong (according to both organizations) but I feel that huge numbers of people have made those meanings.

Re:What does it mean? (4, Informative)

Dwonis (52652) | more than 5 years ago | (#27526113)

The open source definition [opensource.org] is a set of 10 criteria that "distribution terms" (i.e. a copyright license) must meet to be legitimately called "open source". The problem is that, if you're dishonest (and many people are), you can still use patent law or other means to render most of those criteria moot while still nominally meeting them.

On the other hand, FSF's free software definition [gnu.org] only deals with the necessary results of those rules, rather than the rules themselves. It doesn't matter whether somebody's lawyers have figured out a clever way to cover all the "open source" checkboxes, unless you have the actual, meaningful freedoms to run, study, adapt, improve, and redistribute a program (including improved versions) to anyone for any purpose at any price, then the program is not free software.

The FSF has a fairly decent (and reasonably fair) comparison of "free software" vs "open source", entitled Why "Open Source" misses the point of Free Software [gnu.org]

Re:What does it mean? (1)

Schraegstrichpunkt (931443) | more than 5 years ago | (#27526181)

"Free Software" means the enforced-freeness of the GPL, which is a subset of Open Source.

Not according to the FSF, which lists [gnu.org] the 3-clause BSD license as a "GPL-compatible free software license".

What you describe here is called "copyleft".

Re:What does it mean? (0)

Anonymous Coward | more than 5 years ago | (#27526765)

in common use "Open Source" *does* now mean you are free to do whatever you want with the source

That's always been the case. The right to redistribute is one of the fundamental prerequisites of open source. "Look but don't touch" has never qualified as open source. That's more along the lines of Microsoft's "shared source".

Re:What does it mean? (1)

volpe (58112) | more than 5 years ago | (#27529519)

It really seems to me that in common use "Open Source" *does* now mean you are free to do whatever you want with the source.

If that were the case, there would be no need for an open source license.

Re:What does it mean? (2, Insightful)

Anonymous Coward | more than 5 years ago | (#27525349)

I completely agree, if I can't share my customised versions of open source software with others then I wouldn't call it open. Just because patents are different to copyright doesn't mean that they can't restrict me in the same ways.

To be clear, copyright licenses can't avoid patents as a whole but what they can do is say that you can't distribute copyrighted material without granted any necessary patents that you have. This gets around the 'submarine patent' scenario where someone contributes patent infringing code and then demands royalties.

The interesting part of this decision is that it might invalidate lots of open source licenses that don't explicitly exclude software patents, or it might have a roll on effect to software licenses that just a blind eye to patents. Most people seem to think that if they get BSD code they can do anything including closing the source and selling it but obviously with patents they can't. Te GPL version 2 had problems with patents, but version 3 fixes these.

So this decision will be interesting in that it may change how we think about conventional open source licenses.

Re:What does it mean? (1)

HiThere (15173) | more than 5 years ago | (#27533941)

I don't think the GPLv2 actually had a problem with patents, but there were certainly questions which would have made for difficult court cases. As you said, GPLv3 fixes that.

Re:What does it mean? (1)

Halo1 (136547) | more than 5 years ago | (#27525089)

Does this mean that the source code would be freely available, but that you couldn't use it without paying them?

And that if you'd look at it, you'd be liable for tripple damages in the US (due to willful infringement).

While at first sight this would seem to imply that that they'd better simply give the code to the people who license the patents and not bother with open source, there are some cases where the source could still be useful. E.g., in many European countries (where officially we don't have software patents, but in practice we do under the weasel name "patents on computer-implemented inventions"), there is an exception in patent law for, a.o., non-commercial use.

Still, it sounds more like Microsoft's "shared source" than like real open source.

What's the point? (1)

pjt33 (739471) | more than 5 years ago | (#27525145)

Looks like it:

The Initial Developer and Contributors hereby irrevocably covenant (Patent Covenant) not to assert their Patent Claims over the Covered Code, regardless whether You have obtained a proper license on said patents and as long as the other provisions of this license are respected, limited to any use of this software in Source Code, excluding any distribution as Executable or execution through runtime, debuggers or emulators. Patent Covenant is however extended to the compilation and use of a compiled version (as Executable) of this software for study and evaluation purposes only, with the exclusion of distribution of compiled code or any other commercial exploitation.

What I don't understand is what the point is of making something open source if you're only allowed to use it as a black box. Are they expecting people to licence the patent and then distribute the reference implementation? But if they're paying for the patent why not bundle a copyright licence in with it? And why the restrictions? Surely a patent only prevents you selling or importing infringing products, so the "patent covenant" isn't actually giving you anything you didn't already have?

Published Source != Open Source (2, Insightful)

flaming error (1041742) | more than 5 years ago | (#27525293)

Published source code is not the same as "open" source code.

They're trying to confuse the issue so they can have it both ways - look like a good corporate citizen by donating to the community, but making us pay for the donation.

Re:What does it mean? (0)

Anonymous Coward | more than 5 years ago | (#27525843)

A software patent is not infringed by source code, or even a binary (see AT&T v MSFT). It can only be infringed by running a compiled executable. I'm certain the manufacturer of my standalone DVD player paid for a MP3 patent license. Either I've been sublicensed as an end-user and am free to use LAME or I'm infinging by playing MP3s on my DVD player. There's a similar situation with Microsoft's longfilenameFATpatent and those huggable darlings at MSFT know this full well.

So even if we assume software patents have legal validity (questionable -- the US the supreme court has not ruled on it), in many cases we can safely say we have a license.

Are you sure AT&T vs MS is relevant? (1)

Pinky's Brain (1158667) | more than 5 years ago | (#27527211)

AT&T vs Microsoft puts contributory infringement to bed ... but AFAICS distributing source code can still be construed as inducement to infringe (which wasn't relevant in the AT&T vs Microsoft case because it dealt with a different set of laws on exports, to a country where the patent wasn't valid in the first place).

Yes, correct (0)

Anonymous Coward | more than 5 years ago | (#27526597)

They want to publish the source code, but not grant the patent license. Now, from a developer's perspective, this can be interpreted as follows. If you aren't willing to break the law, then this means that to use the software you need the patent license. Effectively the patent has been statically linked as a kind of binary to your binary. However, there's a catch. If a linked object were software, you could develop a replacement and release that as free software. So that means that even if software can only work when linked against a certain non-free library, it can still be free (without the library) and perhaps a replacement can be developped that makes the combination free as well. Linking against operating system and runtime libraries would be an example. However if the linked object is a patent, this is generally not possible, because usually there is no way to replace it. The code contains due to its implementation a reference to the specific patent that cannot be removed. And this is why I hope that no one will ever mistake such a source code without patent license for a free license, because it manifestly isn't. Suppose it were possible (it de natura isn't, thankfully) to embed a non-removable call to a specific version of a non-free library in code... then the GPL and similar licenses would contain clauses disallowing that as well.

It contains a Patent Covenant (3, Insightful)

kripkenstein (913150) | more than 5 years ago | (#27528589)

Does this mean that the source code would be freely available, but that you couldn't use it without paying them? I skimmed the artical and linked pages, but can't figure out what this would actually mean.

TFA says that it includes a patent covenant not to sue two classes of people: Those distributing only the source, and those compiling for 'internal purposes' only.

It seems to me that the second case would handle e.g. Linux users that compile and run the code on their machine, and use it to view content. The first case is less clear, it seems that it might be intended to cover people 'working' with the code, and that might possibly extend to Linux distros that distribute the code (but not binaries) to their users (who can then compile it).

Not sure if it's achieved, but the goal seems to be to sell patent licenses to big corporations that make lots of money off of this sort of thing, while not bothering with individuals and hobbyists.

MIT/BSD licenses (4, Informative)

argent (18001) | more than 5 years ago | (#27524969)

They should use the BSD or MIT licenses if they're more interested in releasing code than promoting public policy. It would provide the key functionality they claim to need without dragging their whole process through the muck and mire.

Re:MIT/BSD licenses (3, Insightful)

GNUbuntu (1528599) | more than 5 years ago | (#27525025)

Yeah, but then it would probably be impossible to enforce their patent pool since the BSD/MIT licenses don't require you to even acknowledge that you've combined their code into a proprietary product.

Re:MIT/BSD licenses (2, Informative)

Eric Smith (4379) | more than 5 years ago | (#27525115)

Of course they could still enforce their patents. The BSD and MIT licenses don't grant any patent rights, so they could still sue for infringement.

I am not a lawyer, but IMNSHO if they go that route, they should probably put a notice alongside the license stating that the software is subject to patents, with a URL of an MPEG LA web page giving more details.

Re:MIT/BSD licenses (4, Interesting)

Wesley Felter (138342) | more than 5 years ago | (#27525281)

According to the thread, many people in OSI believe that MIT/BSD licenses do (implicitly) grant patent rights. This was a surprise to me.

Re:MIT/BSD licenses (1)

Eric Smith (4379) | more than 5 years ago | (#27527183)

Are any of the people believing that actual lawyers?

Re:MIT/BSD licenses (4, Insightful)

Pinky's Brain (1158667) | more than 5 years ago | (#27527251)

Plain English, do you speak it?

"Redistribution and use in source and binary forms, with or without modification, are permitted"

Or did I miss the part where they said "but we withhold the right to sue you for inducement to infringe if you try the former, and actual infringement for the latter"?

Re:MIT/BSD licenses (1)

Hal_Porter (817932) | more than 5 years ago | (#27530187)

You can't tell if that is patent license without asking a lawyer. And these guys who are lawyers disagree with your argument

http://www.rosenlaw.com/Rosen_Ch05.pdf [rosenlaw.com]

University of California's intellectual property rights were actually being licensed by the first BSD license. Almost everyone believes that the redistribution and use clause of the BSD license was intended to include all of the exclusive intellectual property rights the University then owned for something called the "Berkeley Software Distribution." The fact that the BSD license does not expressly list those exclusive rights (e.g., copy, create derivative works, distribute, perform, display, make, use, sell, offer for sale, import) doesn't mean they intended any of those rights to be excluded from the license. The term redistribution means distribution again. This necessarily includes the right to make copies, since one cannot distribute software again without making copies. And since the word modification later in the sentence implies derivative work , I assume that the license allows the copying and distribution of both the original and derivative works. The word redistribution in the BSD license appears to encompass all those copyright rights that must be granted to ensure software freedom. The BSD license passes the filter of the Open Source Principles.

The word use, on the other hand, is not found among the exclusive rights of copyright owners. The use of software can be affected by a patent, because under the law, a patent owner has the exclusive right to make, use, and sell any product in which the patent is embodied. But the University of California made no patent grant in the BSD license. Indeed, later in the license the University specifically used the phrase this software is provided by the copyright holders and contributors , suggesting by its absence that there are no patent holders or that those patent holders are not granting anything in this license.

In the absence of an explicit patent grant, but considering the word use in the license, can we assume that the BSD license impliedly grants enough of whatever patent rights the University of California then owned that a licensee may use the software as it was originally distributed by the University? Most licensees under the BSD assume it does on the theory that otherwise the copyright license would be of no value. What good, they say, is software that can be copied but not used? Such a conclusion is not based on the law of licenses. Indeed, a bare license of copyright need not include a bare license of patent at all. It is only if the BSD is viewed as a contract that we can introduce contract law principles such as reliance or reasonable expectations of the parties. If software is licensed under the BSD without forming a contract between licensor and licensee, the extent of any patent grant is at best ambiguous.

As to whether an implied grant of patent rights extends to versions of the software with modifications, that's an even more complicated question. The BSD license is silent about a patent license for derivative works. So if a licensee improves the original Berkeley Software Distribution in a way that infringes a patent owned by the University of California, there is no easy way of knowing whether an implied BSD patent license includes a patent license for that improvement.

Since courts are likely to construe implied grants of license narrowly, a licensee should consider obtaining separately from the licensor an explicit grant of patent rights that might be needed for modified versions of BSD-licensed software.

Seems like to be safe if you were intending to grant people a copyright license but not a patent license you should make this explicit though.

Re:MIT/BSD licenses (2, Insightful)

Eil (82413) | more than 5 years ago | (#27525465)

That would allow them to release the code under what is typically known as an "open source" license, sure. But releasing code that's known to be covered under a valid patent would undermine the spirit of open source no matter what license you use.

They would literally be saying to the world:

"Here's our source code free to download, view, and share. (But it's covered by several software patents so if you actually try to use it, we'll sue you. Have a day.)"

Re:MIT/BSD licenses (2, Interesting)

funkatron (912521) | more than 5 years ago | (#27525715)

It's pretty hard to read

Redistribution and use in source and binary forms, with or without modification, are permitted

or

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so

as being anything other than statements giving permission to use the software. Even if the software is patented wouldn't distributing it with a license saying that people can use it mean that you were giving permission to use it and were therefore allowing the use of your patent.

Make the reader open, the writer licensed (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27525003)

Everybody should be able to use, say, H.264 and AAC if your software only does playback.

To record/create files, you would need a license.

Re:Make the reader open, the writer licensed (1)

Yvan256 (722131) | more than 5 years ago | (#27525279)

That would sure help adoption of HTML5 content on the Web. The real world uses H.264/AAC, not Theora/Vorbis.

Well, that, and having Microsoft, Mozilla and Opera actually support the damn thing. AFAIK only Safari supports HTML5 media. Not that I have made any search about it, mind you. This is slashdot, after all.

Re:Make the reader open, the writer licensed (2, Insightful)

jonbryce (703250) | more than 5 years ago | (#27525595)

The real world uses Adobe Flash.

Re:Make the reader open, the writer licensed (1)

supernova_hq (1014429) | more than 5 years ago | (#27526215)

I was living in denial you insensitive clod!

Re:Make the reader open, the writer licensed (1)

Yvan256 (722131) | more than 5 years ago | (#27531341)

Flash is not an audio/video CODEC. People only use Flash as a playback program for the media files.

Re:Make the reader open, the writer licensed (0)

Anonymous Coward | more than 5 years ago | (#27533387)

Note: The latest beta versions of the Mozilla Firefox and Opera browsers support Ogg Theora and Ogg Vorbis for the HTML5 <video> and <audio> elements. It would seem that the more open source friendly browser developers have already moved to Ogg Theora as a standard for video.

Re:Make the reader open, the writer licensed (2, Insightful)

Improv (2467) | more than 5 years ago | (#27525291)

That's all well and good for a society that doesn't produce ideas and share them between themselves very freely. It more describes the pre-internet 80s society than the modern internet-driven society - Apple, Youtube, and the like have shown that society does not have to be fed, as consumers, only things that dedicated producers provide.

Re:Make the reader open, the writer licensed (0)

Anonymous Coward | more than 5 years ago | (#27525301)

Or make the reader free and the writer free, just like AAC and H.264.

This Doesn't Make a Whole Lot of Sense (2, Interesting)

eldavojohn (898314) | more than 5 years ago | (#27525037)

What is the motive behind this new license? To cherry pick a few of the ideals of Open Source Software (OSS)?

It sounds like, from the license, that they want the openness of many eyes reviewing and improving the code with derivative work while at the same time licensing that idea to other companies. Which, frankly, I cannot comprehend as any company would just opt for the open source community code to integrate into their product than pay the patent holder to roll their own. Or are they planning on charging you for the "open source" version like normal software? If so, how is that any difference from a commercial license modified so that you receive the code to review with the product?

I mean, I'm happy for them to do whatever they feel like ... I don't mind more licenses and I think the MPL was a step in the right direction but not perfect. Either way, observers can be sure of one thing, there are at least some aspects of open source that appeal very much to a lot of people. It will be interesting to see what results from this endeavor.

Re:This Doesn't Make a Whole Lot of Sense (1)

Hognoxious (631665) | more than 5 years ago | (#27525117)

while at the same time licensing that idea to other companies.

Since no form of intellectual property covers ideas [uspto.gov] , it's impossible and/or nonesensical to license them.

Re:This Doesn't Make a Whole Lot of Sense (1)

Chabo (880571) | more than 5 years ago | (#27525175)

Heh. I enjoy that you linked to the "Kids page". Nice, simple explanation of what can be patented.

Maybe send that link over to the MPEG-LA?

Re:This Doesn't Make a Whole Lot of Sense (1)

eldavojohn (898314) | more than 5 years ago | (#27525185)

Well, from the link you posted:

What happens if two people have the same idea and both apply for patents?

This happens sometimes. When the Patent and Trademark Office receives two patent applications for the same inventions, the cases go into an interference proceeding. The Board of Patent Appeals and Interferences then determines the first inventor who thus may be entitled to a patent based on the information provided by the inventors. This is why it is so important for inventors to keep good records.

And also

How can I find out if my invention has or hasn't been invented by someone else?

Inventors can make a search of patents already granted, text books, journals and other publications to be sure that someone else has not already invented their idea. They may hire someone to do it for them or may do this themselves at the Public Search Room of the U.S. Patent and Trademark Office in Arlington, Virginia, on the PTO web page on the Internet, or at one of the Patent and Trademark Depository Libraries across the country.

The site only says that "abstract ideas" cannot be patented. I apologize for following the law but when I said "while at the same time licensing that idea to other companies" it is not an abstract idea but instead a very specific idea with an implementation already at hand. I would be more happy than if I were meeting Alan Turing if what you said was true but the link you provided did not really back up your claims.

Abstract ideas? (1)

Pinky's Brain (1158667) | more than 5 years ago | (#27527339)

That's cute, so when they slip up and say ideas like everyone else they can say "but I was talking about abstract ideas, and you were not". The whole "you can't patent ideas" thing is just a little semantic diversion, used by idiots who don't recognise it as such and people who are disingenuous.

Re:This Doesn't Make a Whole Lot of Sense (5, Insightful)

jvillain (546827) | more than 5 years ago | (#27525133)

I think it boils down to this. The open source community can feel free to contribute code and documentation to our project. But we will feel free to keep you from being able to run it on an open source platform and we have the force of patents to stop you. If you want to fork the code we just drop the patent bomb.

The MPEG group and the other douche bags they hang with are the most anti open source group there is. Am I ever going to play Blu-ray movies on my Linux computer? Not likely.

Re:This Doesn't Make a Whole Lot of Sense (1)

hobbit (5915) | more than 5 years ago | (#27525169)

+1, Exactamundo

who's the target audience? (0)

Anonymous Coward | more than 5 years ago | (#27526151)

I think it boils down to this. The open source community can feel free to contribute code and documentation to our project. But we will feel free to keep you from being able to run it on an open source platform and we have the force of patents to stop you. If you want to fork the code we just drop the patent bomb.

Or, in a less Orwellian take: the license gives licensed implementers a common, working starting point for their products. They don't have to start from scratch, and everyone's not re-inventing the wheel. Everyone ships the same libmxm.so or MXM.DLL, and any bug fixes can be shared as well. This would also help interoperability.

The "open-sourceness" is aimed towards licensees, and not the general public: the audience for the library is not J. Random Hacker browsing Source Forge or the FreeBSD Portss collection.

Re:This Doesn't Make a Whole Lot of Sense (0)

Anonymous Coward | more than 5 years ago | (#27527311)

MEPG: Look! We are nice people now! Our license reads "open source" when are you going to start liking us and sending us patches?

Every OSS coder and their grandma:
Hahahahahaha!
Ahhh...
Nice one! ...
What? You meant that seriously?

Re:This Doesn't Make a Whole Lot of Sense (1)

Pinky's Brain (1158667) | more than 5 years ago | (#27527541)

How am I supposed to send them patches? Their entire system works on the members only principle ... the only time they work anywhere near the open is if they cooperate with other standard agencies which force them into it, like the ITU with H.264 development (Mr. Chiariglione gets awful but hurt when you call it H.264 BTW).

Re:This Doesn't Make a Whole Lot of Sense (1)

david_thornley (598059) | more than 5 years ago | (#27526093)

I do mind more licenses. I hate Open Source/Free license fragmentation.

However, what usually makes people interested in working on F/OSS is that their work is usable by others. I can't imagine that overtly patent-encumbered software is going to get "many eyes", at least in those barbaric nations that have software patents.

Re:This Doesn't Make a Whole Lot of Sense (1)

rsmith-mac (639075) | more than 5 years ago | (#27528637)

It strikes me that they're looking to codify status quo. Right now the MPEG-LA tries to do the "right thing" with respect to maintaining their patent rights while at the same time not stopping people from using their technology for non-commercial purposes. There's a metric shitload of software out there implementing MPEG codecs without a license, largely software based on libavcodec and other FFmpeg projects.

The dick move for the MPEG-LA would be to enforce these patent rights over all such software, getting injunctions against the distribution of projects like VLC, Ubuntu, Media Player Classic, X264, FFDShow, etc in the United States and other countries with software patent rights. But the MPEG-LA has shown absolutely no interest in this whatsoever. They seem content to let non-commercial software implement their codecs (and infringe on their patents in the process). Their only real interest has been commercial users - if you're making a buck directly from their work, they want their share.

The thing is that none of this is codified under their current licenses. It's selective enforcement, which isn't a great legal strategy. This license looks to be a start for codifying status quo, so that open source users would be protected, while the MPEG-LA is still free to go license their patents to commercial entities.

But then again, IANAL, I may be reading this all wrong.

If you don't like it.... (1)

ADRA (37398) | more than 5 years ago | (#27525137)

Don't use it. Its pretty simple folks. If you want to fight against software patents you will:

1. Boycott companies that actively engage in patent litigation (Against open source doubly)
2. Tell all your friends to stop using said companies products. Tell them why its bad for you in the end, and tell them alternative products / technologies that aren't stifling external creativity
3. Write a well worded letter to said company and detail why you have qualms with them. Make special note in the letter to outline:
- Your grievances
- How many friends you've convinced to stop using their product
- Alternative products / technologies that don't do whatever your grievance is
- Solutions - How to turn your utter bile hatred in said company into a customer again

Pointing out that you like their products but still refuse to respect their behaviour will make sure to whomever reads the letter that your hatred of their company is not out of some bias, but based purely on said behaviour.

Re:If you don't like it.... (1)

minsk (805035) | more than 5 years ago | (#27525557)

Great. But what in the "pretty simple folks" helps productive companies that can't enter a market because of patents? Or that do enter, and then get sued into oblivion by the trolls?

We're not going to prevent software patents by boycotting the few companies that both produce a product and sue others. Making Free standards better than the patented ones is a start. But the final change needs to be in the deluded legal systems which equate monopolization and motivation.

Re:If you don't like it.... (1)

cdrguru (88047) | more than 5 years ago | (#27525877)

Unfortunately the real problem is VC and other investor money that comes with strings attached. Such as, requring the companies they are funding to be in control of their destiny. This is in many ways even a higher priority than simply making money, because if you aren't in control of your destiny your source of revenue can be removed at any time. Even if you aren't making money yet, just being in control can keep you in the game because nobody can take your marbles away.

Re:If you don't like it.... (1)

mellon (7048) | more than 5 years ago | (#27526897)

There was plenty of VC money back when software patents were not legal, so this is a false choice. Your risks and rewards are *different* without software patents than with, but there are still risks and rewards.

Re:If you don't like it.... (0)

Anonymous Coward | more than 5 years ago | (#27527007)

There was plenty of VC money back when software patents were not legal

Yes, but now that they are legal, the Vulture Capitalists try to get as much IP from the company they are backing as possible. Worst comes to worst, you have something for the money gone in, and someone might want to license it. Also, an inventor needs to show the investors during every meeting what they have been doing. IP is a way of showing the vultures that they are getting something, kind of like waving colorful plots to show that you are working.

We use MPL and BSD/MIT (2, Insightful)

anthm (894202) | more than 5 years ago | (#27525217)

Our project (FreeSWITCH [freeswitch.org] ) uses the MPL for the main application and BSD for satellite libraries that we create that can be used by other projects etc.

Once you decide to have open source code, it's more logical to stick with the fact that at least the core code is FREE and come up with ways to develop a product on top of it if you want to have something to sell. Otherwise it sounds like an "open source tax" and businesses do not like uncertainty. If they choose to use a code base they need to know it will always be available.

If the OSI accepts this... (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27525343)

... then it's time for the OSI to go. It is one thing to dilute the concept of freedom-in-software to make it more palatable for corporations, but it is entirely another thing to actively undermine the ability of people to write software freely without having to worry about bullshit patents.

Are you listening Eric Raymond or are you too busy stockpiling guns and copies of Atlas Shrugged?

Re:If the OSI accepts this... (1)

CarpetShark (865376) | more than 5 years ago | (#27526885)

If the OSI accepts this... then it's time for the OSI to go.

Well said. That about sums it up for me.

Lemme get this straight, (0)

Anonymous Coward | more than 5 years ago | (#27525403)

The Motion Picture Experts Group Working Group wants to release a reference implementation of the new Motion Picture Experts Group eXtensible Middleware standard. Are we running out of sane acronyms? More at 11.

"Shared Source" By Any Other Name... (1)

CritterNYC (190163) | more than 5 years ago | (#27525473)

What they want to do is not in the spirit of open source. Just post the source code with a proprietary shared source license the same way Microsoft and others do. That way they have the source code available for review but no one is allowed to use it without paying them. Which is exactly what they want.

hehehhe... MXM? WHoa... (1)

davidsyes (765062) | more than 5 years ago | (#27525495)

It's funny to me that the product/service acronym is MXM because jussssst b4 is saw that, i saw the slashdot dating notice:

Slashdot Dating
Other Slashdot Users are Nearby Meet and date on Geek 2 Geek
www.Gk2gk.com

So, my mind quickly saw G2G 4 M4M... lol.... THAT's why /. is so... pent upp, hehehe... some guys need to get out more often... hang out in corn fields in Iowa... keep an eye out for the errant/itenerant Klingon that might arrive fleeing from the Xindi or the Orion Syndicate...

No! (0)

Anonymous Coward | more than 5 years ago | (#27525501)

Hand over your patents or GTFO!

Patent-Agnostic (1, Funny)

Anonymous Coward | more than 5 years ago | (#27525795)

I don't know whether I believe in imaginary property or not!

Someone didn't read the OSD (2, Insightful)

janwedekind (778872) | more than 5 years ago | (#27525857)

From the email [crynwr.com] :

Patent Covenant is however extended to the compilation and use of a compiled version (as Executable) of this software for study and evaluation purposes only, with the exclusion of distribution of compiled code or any other commercial exploitation.

Well, maybe someone is trying to argue that other OSI licenses also don't promise anything regarding royalty-free patent-licenses. But this is because licenses are predominantly about the author's copyright and not about the patents. However if the text of this licenses explicitely deals with patents and uses them to restrict users rights, then it formally violates already item 1 of the Open Source Definition [opensource.org] .

Stallman's answer comes to mind

If your software would keep us divided and helpless, please don't write it. We are better off without it. We will find other ways to use our computers, and preserve our freedom.

Isn't MXM a trademark of NVIDIA? (0, Offtopic)

ElectricTurtle (1171201) | more than 5 years ago | (#27526667)

Sick 'em Jen-Hsun Huang.

The source/object nondichotomy (2, Insightful)

russotto (537200) | more than 5 years ago | (#27526815)

From TFA:

I have insisted and obtained, however, that an explicit patent covenant be inserted, to the effect to exclude from any patent concern all who don't distribute the compiled version of the software and to those who compile it only for internal purposes without direct commercial exploitation.

That renders the patents nearly irrelevant, completely so for general purpose computers. There's nothing to prevent a commercial exploiter from distributing the source code to their customers, along with a compiler and a one-step process for compiling it. Nor for any Linux distro to do essentially the same -- create an "mpeg-mxm" package which requires mpeg-mxm-source and gcc and automagically compiles the package. Even Apple and Microsoft could do it. I'm not sure why this would be acceptable to the MPEG group. There simply is no way to effectively control "object code" without also controlling source code. Not only can source code be translated into object code, it can be executed directly by an interpreter. Then what is your patent doing? As for the dodge of claiming "a machine-readable medium containing the instructions to execute this nonpatentable algorithm"... I wonder if they've realized that they've claimed any computer-readable medium containing the patent description itself...

There must be more to it than this... (1)

zotz (3951) | more than 5 years ago | (#27527083)

"The MPEG Working Group wants to release a reference implementation of the new MPEG eXtensible Middleware (MXM) standard as open source, but it also wants to be able to sell patent licenses."

There must be more to it than this because there is an easy solution for this one.

Put the code under the AGPL or GPL, Grant a free patent license to those using the Free stuff and charge tpatent fees to those who want a non-Free license to the code.

So, if they develop their own non-Free code and the patent covers it, they pay once.

If they want a non-Free license to the code as well then they pay twice.

(Note, I am not discussing the "rightness" of software patents here. Just commenting on the lack of a problem as stated with how things seem to have been going on lately.)

My guess is what is really meant is that they desire to obtain the "Good Vibes" that go along with being Open Source Software or Free Software without actually giving people the intended benefits. I do guess wrong with reasonable frequency so I will be interested to see how this plays out. (Hopefully there will be no sellouts from the community side of things.)

all the best,

drew

No. Hell no. What kind of dope are you on? (2, Funny)

symbolset (646467) | more than 5 years ago | (#27527425)

Somewhere there are lawyers sitting around a bottle of scotch thinking up ways to use words for the exact opposite of what they mean. They are the Drunken Idiot Attorney Forum (DIAF) working group. Clearly this license is a draft version of their proposal for an international Patented Open Software (POS) standard to be pushed through the ISO fast track process next year despite the determined opposition of just about everybody involved.

Fortunately for all of us this endeavor violates at least three Microsoft business process patents.

Just say NO! (1)

woboyle (1044168) | more than 5 years ago | (#27531631)

Just say NO! to software patents. As a member of the FSF I am in total opposition to allowing patent-encumbered licenses into the system. There is no "compromise" to this principal that in my opinion would be appropriate. I hope that the FSF rejects this attempt to subvert the entire GPL, and will actively encourage it to do so.
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