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Comment by clarry | Hacker News Reader

Is simple, unconditional freedom really that absurd?

We want to make available source code that anyone can use for ANY PURPOSE, with no restrictions.

That's what we call a free gift.

That is one of the project's goals.

You're right, the patent clause might not necessarily be an attack against the OpenBSD developers' freedoms. But they do not care about their own freedoms only; they want it to be free for anyone (this includes corporations who might hold patents, and also individual developers working for such corporations), for any purpose. It is really as simple as that.

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Let me quote Theo --

  You guys keep missing the point really.

  We know what a free license should say.

  It should say

  Copyright foo

  I give up my rights and permit others to:
		distribute
		sell
		give
		modify
		use

  I retain the right to be known as the author/owner

  When it says something else, ask this:

  - is it 100% gauranteed fluff which cannot ever affect anyone?

  - is it giving away even more rights (the author right)?

  If not, then it must be giving someone more rights, or by the same
  token -- taking more rights away from someone else!

  Then it is _less_ free than our requirements state!

  So why even BOTHER wasting your time trying to understand what they
  say?

  Who cares if it is legal or not!  We're not going to want to go
  quibble in a court!  We're trying to make it so simple that something
  can't even GO to court, because it's free and, anyone can tell that it
  is free because the language used to say so is SIMPLE.

(From http://marc.info/?l=openbsd-misc&m=103283218106749&w=2)

That's noble and I respect that. Unfortunately it fails to address software patents at all, and that doesn't make the problem go away.

Copyrights are essentially about copying. Patents aren't - you can write a clean-room program that's entirely your own work, absolutely guaranteeing that you aren't infringing anyone's copyright, but it could still infringe a patent you've never heard of. Or you could accept code from a friendly company which has a few defensive patents on it, and some years later the friendly company comes under less friendly ownership and the defensive patents turn offensive.

Apache, being based in the US (which has many software patents) and accepting code from many companies that have patents, has to deal with these scenarios. OpenBSD, being based in Canada (with far fewer - but not zero! - software patents), isn't as affected by it so Theo calls it bullshit. But it's not so black-and-white.

You are right, copyrights are about copying. Copyright licenses cannot address software patents any more than they can address US export restrictions, trade marks, contracts, or any other international or local laws that might deny you some freedoms. Theo cannot grant you rights to Microsoft's or Cisco's patents. What he can grant you is rights to his code.

Now you can try to "address" software patents e.g. by obligating distributors to grant rights to their patents, but that is a restriction; it might be giving someone more rights, and by the same token is taking more rights away from someone else! More importantly, that would be a restriction imposed by the copyright holder, rather than an external restriction imposed on you by a third entity the copyright holder does not control.

OpenBSD does not want to impose such restrictions on you or anyone else. They make their code free.

You seem to think that OpenBSD or Theo simply disregard patent issues because they hail from Canada. Maybe you should learn about CARP[1][2], or figure out why many of the ports' Makefiles have a line like this:

  PERMIT_PACKAGE_CDROM=  patents

[1] http://www.openbsd.org/lyrics.html#35 [2] https://en.wikipedia.org/wiki/Common_Address_Redundancy_Prot...

(I lean on the *BSD side of anarchistic, DWTFYL.)

Patents + OSS is a huge, under-served point that unfortunately Lessig is no longer working on.

I and others that open source tons of code will be the first to wave the FOSS banner all day long, but it's not going change the reality of the present landscape.

As such, open source projects and startup founders repeatedly fail to anticipate the consequences of nonparticipating in the patent scheme. If the other side (a company) holds a (shitty) patent, and a project doesn't... they can still squish them like the cockroaches they are should the project become significant. So there's options: either play the game, fight city hall or get fucked by pretending it doesn't exist. Not choosing an action is still a choice.

Perhaps one of the larger OSS orgs would show leadership on this to help projects manage this tricky minefield.

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