Ask HN: Could a “Patent Clause” Be Added to Open Source Licenses | Hacker News Reader

Ask HN: Could a “Patent Clause” Be Added to Open Source Licenses

4 pointsbdavisx2 comments

Could a clause be added to Open Source licenses saying something like: "Any software that uses this library agrees to assign any patents arising out of software to the Public Domain" (obviously more legalese required here). Also for something like servers: "This software may not be used to host any content that is covered by a non-public domain patent."

Would this be feasible?

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Your first condition is already in licenses like the Apache 2.0, GPLv3 and several other licenses. However, it isn't a requirement that "the patents are in the public domain" (mainly because such a requirement doesn't make sense, the public domain is a term used in copyright law to refer to a work with no copyright, it has nothing to do with patent law). Rather, it states that all contributors grant a "perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable" patent license to any other user of the software, provided that they do not attempt to sue a user for infringement of patents that were granted under that license.

Your second condition would make the license a proprietary licence (it violates freedom #0: the right to run the program as you wish without restriction). In addition, I'm not sure that it would enforcible with current copyright law (similar to the provisions in the AGPL), since I'm not sure you can argue that input data to a program is something that you could restrict in law (and if it's free software, the end user can modify it to allow you to break that rule). And it would also be a minefield (what if something could be patentable, or is patented by someone other than the person who distributed it, what if the patent holder gave a patent grant to the rest of humanity, how many requirements are there for such a grant in order for it to be allowed, etc).

I think that such a provision would be even more unpalatable to the business world than copy left provisions that risk the user having to release their product under the same OSS license. I don't see any proprietary software company ever using anything like this in their code base.ehy would you do this and leave yourself open to suits from the likes of oracle and Microsoft? So long as they have their Arsenal of patents, you need yours, regardless of home much you hate software patents.

The second provision isn't just unpalatable, it's dead in the water. Lots of SaaS companies host anything and everything without knowing what they host - think Dropbox. Even if they wanted to comply with this provision it would require someone poring over everything submitted by a customer and making the determination of whether or not a patent might apply isn't a determination even an army of lawyers could confidently make.mforther with more and more companies getting encrypted data from customers, this is even more impossible to comply with.

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