Should an Open Source Licence Ever Be Patent-Agnostic?

by Glyn Moody

Sharing lies at the heart of free software, and drives much of its incredible efficiency as a development methodology. It means that coders do not have to re-invent the wheel, but can borrow from pre-existing programs. Software patents, despite their name, are about locking down knowledge so that it cannot be shared without permission (and usually payment). But are there ever circumstances when software patents that require payment might be permitted by an open source licence? That's the question posed by a new licence that is being submitted to the Open Source Inititative (OSI) for review.

It arises out of work to create a reference implementation of the MPEG eXtensible Middleware (MXM) standard. This aims

to promote the extended use of digital media content through increased interoperability and accelerated development of components, solutions and applications. This is achieved by specifying

1.The MXM architecture
2.The MXM components (by reference)
3.The MXM components APIs
4.The MXM applications API
5.The inter-MXM communication protocols

More details can be found here.

The proposed licence is closely modelled on the Mozilla Public Licence (MPL). In his submission to the OSI, the well-known free software activist Carlo Piana explains the key difference:

As you will notice, we have removed some of the patent conditions that existed in the MPL. This is because none of the contributors would have accepted to encapsulate their patents in a FOSS license without the ability to ask for a license separately from the copyright. This is a basic tenet that is enshrined in the so-called ISO/IEC Directives for the development of International Standards. Some of you might know about my public stance against software patents and my approval to some of the licenses which impose implied licensing to or patent retaliation against all who distribute FOSS software while relying on patent protection. However, the sad truth is that if we did not offer a patent-agnostic license we would have made all efforts to have an open source reference implementation moot.

He adds:

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. This covenant being irrevocable, unconditioned and detached from the copyright licensing conditions. I have asked myself if this could work and if it complied with the OSI definition. My final conclusion is that if the BSD family is considered compliant, so shall be the MXM, as it does not condition the copyright grant to the obtaining of the patents, just as the BSD licenses don't deal with them. And insofar an implementer is confident that the part of the code it uses if free from the patented area, or it decided to later challenge the patent in case an infringement litigation is threatened, the license works just fine.

Beyond the question of whether the proposed MXM licence complies with the OSI definition from a legal point of view, there is a much larger issue of whether it is true to its spirit – and whether we want open source licences to accommodate software patents.

As I wrote above, software patents are fundamentally antithetical to the free sharing of information, and so allowing their presence in an open source licence seems to be tantamount to blessing their negation of that ideal. More generally, explicitly permitting them in an OSI-approved licence is bound to be exploited by those that support software patents, especially in places like Europe where they are not currently permitted.

The argument will go that the MXM licence shows clearly that software patents and open source are not incompatible, and that the former can be accommodated provided a suitable licence is chosen. This would therefore undermine efforts to use open source as one argument against allowing software patents in national and international standards, for example. It would allow those endorsing software patents to claim to be open source, while other licences – notably the GNU GPL – would be excluded. This would lead to a complete dilution of what the open source definition is meant to stand for.

The main argument in favour of permitting software patents in an open source licence seems to be the pragmatic one that if they are not allowed, then the MXM reference implementation will not be released under an open source licence. But this is sheer brinkmanship on the part of the media industries, who are effectively making a threat to the open source community, saying that unless software patents are allowed, they will not permit open source implementations.

But as history has shown, the best way to deal with bullies is to stand up to them. The reason that an open source licence is even being considered by organisations that in the past would never have contemplated such a move is that they fully recognise the power and utility of open source; in short, they *want* this code to be open source, because it is the most efficient way of driving uptake. They need us more than we need them.

So, in my view, the OSI should not give in to this blackmail, but should stand firm on the fundamental principle that software patents are an unmitigated harm for free software. It should reject the current proposed licence, and insist that if the MPEG Working Group wishes to benefit from open source, it should play by open source's rules.

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