Mozilla Open Software Patent Initiative

[el...@mozilla.com]

Hi everyone,

Over the past few months, we've thinking about Mozilla's contribution to addressing the problem of patents on open source software (see our original post here: https://blog.mozilla.org/netpolicy/2015/04/15/open-source-software-and-the-patent-system/). Today, we're excited to launch our proposal to the solution, the Mozilla Open Software Patent Initiative and Mozilla Open Software Patent License ("MOSPL"). We'd love feedback on both the initiative and the license. You can read more here: https://www.mozilla.org/about/patents/

Additionally, if you have any questions we can answer, please also let us know. Looking forward to hearing your feedback!

Thanks,
Elvin

[Sean Stangl]

Hi Elvin,

IANAL, so I'm having trouble reading some finer points of the MOSPL.

3.a specifies a non-transferable patent license. If we have a patent on
something in the Firefox source tree, does that mean that Linux users who
receive source copies of Firefox from their distribution are not covered
under the MOSPL, or does Mozilla somehow automatically grant this person an
individual license?

4.a sounds very similar to the much-hated Facebook policy of the licenses
immediately revoking upon bringing a claim -- so that if one uses Mozilla
software, we are effectively free to infringe upon their patents. But the
language used is extremely vague, and doesn't specify that the claim need
be brought against *Mozilla*. The text reads that if you bring any claim
against anyone, ever, even in a non-software domain, this license is
revoked. Is that how it's supposed to be read?

Thanks,
Sean

> _______________________________________________
> governance mailing list
> gover...@lists.mozilla.org
> https://lists.mozilla.org/listinfo/governance
>

[Gervase Markham]

Hi Elvin,

This is very interesting :-) Here are some initial questions.

On 03/11/15 14:54, el...@mozilla.com wrote:
> Additionally, if you have any questions we can answer, please also
> let us know. Looking forward to hearing your feedback!

As I understand it, the MOSPL says: "if you want to use any of our MOSPL
patents (absent another license), you need to allow open source software
to use all your patents". Is that a fair summary?

* Does Mozilla have any patents it plans to license under the MOSPL?

* We use as our standard copyright license the MPL, which has a patent
license but is a weak copyleft. Our alternative license is the Apache
license, which has no copyleft. So if we have a patent embodied in our
MPLed or Apache code, what is to prevent someone who doesn't like the
MOSPL from just taking the MPLed/Apache files which implement the patent
and using them in their otherwise-proprietary product, thereby avoiding
the need to license their own patents to open source projects?

In other words, surely for us to start building a commons here, we need
to file some patents on things which _aren't_ in our products?

* What's your ideal takeup strategy for the MOSPL? Is it hundreds of
companies, all of which have their own version with their own name on
it, but otherwise identical? Or something else?

Gerv

[kda...@mozilla.com]

This is awesome! (After talking long hours with you (Elvin) about speech recognition patents, I've seen something like this is sorely needed.)

One question: Could we possible join forces with Google's Open Patent Non-Assertion Pledge to kick start things? They've about 250 patents in their Open Patent Non-Assertion Pledge portfolio. I don't know if Google and Mozilla's approaches can be made compatible, but it might be worth it to try.

[Gervase Markham]

On 03/11/15 16:43, Sean Stangl wrote:
> 4.a sounds very similar to the much-hated Facebook policy of the licenses
> immediately revoking upon bringing a claim -- so that if one uses Mozilla
> software, we are effectively free to infringe upon their patents. But the
> language used is extremely vague, and doesn't specify that the claim need
> be brought against *Mozilla*. The text reads that if you bring any claim
> against anyone, ever, even in a non-software domain, this license is
> revoked. Is that how it's supposed to be read?

I believe so - if you are a patent aggressor, you don't get to use our
patents. I'm sure Elvin will correct me if I'm wrong :-)

Gerv

[Gervase Markham]

On 03/11/15 14:54, el...@mozilla.com wrote:

> Additionally, if you have any questions we can answer, please also
> let us know. Looking forward to hearing your feedback!

It seems perhaps like an opportunity has been missed to establish a
patent commons. Did you ponder the possibility of writing the license a
touch more generically, so other companies could use it unmodified, and
then having section 4 say:

"If you bring a Claim, the licenses granted to you under all instances
of this agreement by any Licensor will immediately terminate as of the
date you bring such Claim."

In other words, by expanding the loss suffered, raise the stakes for
patent aggression, raise the value of being "inside the tent", and build
a commons of companies who are mutually interlocked in a non-aggression
stance.

Gerv

[jme...@mozilla.com]

Hi all

Thanks for the responses and interest.

There were a few questions about the strategic vision for encouraging network effects around this initiative. The problem for open source created by patents affecting software is vast and, compared to the size of other software and internet companies and their resources, Mozilla is tiny. This means we will not be able to address the problem with brute force or mountains of cash. However, we've seen this movie before in the early days of the open source movement. So, our approach was to study in detail both the groundbreaking licensing that resulted in the GPL, MPL and the Mozilla project itself and the way patents and patent licensing regimes have evolved over time.

We learned a few things:

(i) No one license seems to work for everyone - and patent licensing is traditionally even more custom to an entity than copyright licensing. This resulted in 3 things:

(1) We made a goal to strike the balance between openness and flexibility to the licensor that we believe the MPL does so well, but in a pure patent license as our expression of what this could look like.
(2) We designed for flexibility and interoperability with other open patent licensing regimes. Just like other compatibility issues, we may not be able to solve all of them, but tried to handle in an open way in the cross license requirement.
(3) We decided to ask someone with some major history in open source licensing to help draft the license text itself (Heather Meeker @ O'Melveny and Meyers).

(ii) Our portfolio is not large enough by itself to create openness in the world. We are innovative and impactful, but we don't have the resources of a large software company. Therefore, our hope here is that individuals, companies and projects strongly consider what they can do to encourage innovation through open software patent licensing. In addition to MOSPL, there are other initiatives we mention in our post that are doing this now and we'd love to see broader adoption of these types of initiatives.

There were a few questions relating to what happens to the licenses we already use. We described how this works in our FAQ (https://www.mozilla.org/en-US/about/patents/), questions 1 and 3. The goal of MOSPL and its surrounding work is to create an open patent license that flips the patent right from exclusive to inclusive for open innovation; specifically in situations when folks were not taking our code (licensed under MPL, etc.) or implementing a spec we have licensed as a part of a standard (Opus standard, etc.).

To illustrate how this works, let's use Laura as an example. Laura is a coder in an open source project who wants to use the tech embodied in a claim of one of our patents in a separate codec in a way that does not implement the Opus spec or use our source code. Without the MOSPL, Laura would be infringing the patent and be subject to the issues that come with infringement. However, if Laura complies with the terms of the license, she is immediately granted the rights under the license to all of our patents. And, she doesn't have to file anything or join a pool - it works automatically like open source licenses themselves. This also means that folks using our code have no change to their rights under those other licenses unless they want to take under the new license - this was important to ensure.

There were a few questions about the license text itself. Licenses are complicated and are hard to summarize. However, we tried to do this on the website (https://www.mozilla.org/en-US/about/patents/). Here's the text from the relevant paragraph: "The MOSPL grants you a license to make, use, or distribute any software that would be covered by one of our patents, so long as (i) you don't offensively sue, threaten, or accuse anyone's Software of infringing your patents (using your portfolio to defend yourself against a prior-filed patent lawsuit is OK) and (ii) you agree to grant (upon request) your own royalty-free license under any patents you own to all open-source software projects that agree or have agreed to be bound by the MOSPL." Hopefully this helps answer a few questions about the text as well - the license itself continues to be the definitive authority.

Thanks
Jishnu

[timeless]

Hi, sorry for getting in late...

Reading the the quoted text, and the actual license [1]...

> “Affiliate” means any entity owned or controlled by you or Licensor, as applicable, either now or in the future.

I'm using Mozilla's structure as an example. I don't expect this to
happen, since, it violates the spirit of Mozilla, and the spirit of
the MSOPL, but, for this email, I'm more interested in the letter than
the spirit.

Let's say that "Mozilla Learning" was a corporation (I tried to look
up the Mozilla Foundation structure and couldn't figure it out -- if
you prefer, it could have been "Mozilla Messaging" in 2010), owned by
"Mozilla Foundation", just as "Mozilla Corporation" is owned by it.
Contrast that with "Mozilla Online", which is a wholly owned
subsidiary of "Mozilla Corporation".

If Mozilla Online has a patent, and Mozilla Corporation were to use a
patent licensed by another entity under MSOPL, Mozilla Online would be
precluded from aggressively using its patent against the terms of
MSOPL, because Mozilla Online is "owned" or "controlled" by "you"
(Mozilla Corporation).

But, could "Mozilla Learning" have a patent and choose to be aggressive with it?
"Mozilla Learning" is neither controlled nor owned by "Mozilla Corporation".

"Mozilla Japan" is apparently a separate entity. Although it in non
legal text may be "affiliated".
Does this count as a MSOPL [1] affiliate? I'm assuming it per the text
doesn't, although it should for the spirit.

By contrast, the SEC statute definition [2]: Affiliate. An affiliate
of, or person affiliated with, a specified person, is a person that
directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the person
specified.

I think that "directly or indirectly through one or more
intermediaries" and "under common control" are useful pieces of text
missing from the MSOPL.

> “Your Patents” means all Patents owned, or licensable as described in this Agreement, at any time during the License Term, by you.

I'm not sure that I can follow "licensable as described in this Agreement"
or is it "licensable as described in this Agreement ... by you".

Let's say that Mozilla Japan (and assume it isn't considered an
affiliate per [1]) has a patent and licenses it to Mozilla Corporation
for use. Is that "licensable as described in this agreement"?

I think that the text is trying to define "patents which you can
license to others".
Note that MSOPL "grants to you and your Affiliates a royalty-free,
fully-paid-up, worldwide, non-exclusive, non-transferable license".

But, imagine that a Patent-Holding-Company individually provides
"royalty-free, fully-paid-up, worldwide, non-exclusive,
non-transferable license" to a company instead of a "royalty-free,
fully-paid-up, worldwide, non-exclusive, transferable license",
wouldn't that patent thus not be accessible for an MSOPL pool?

> you will not infringe any Mozilla Patent as of the end of the License Term.

If I were editing this document, I'd write "Mozilla Patents" instead
(i.e. in the plural). I don't think it hurts the text (any is
flexible), and it agrees with the definitions section which defines
"Mozilla Patents" (plural).

[1] https://www.mozilla.org/en-US/about/patents/license/
[2] https://www.law.cornell.edu/cfr/text/17/230.405

[Gervase Markham]

On 12/11/15 07:00, jme...@mozilla.com wrote:
> There were a few questions relating to what happens to the licenses
> we already use. We described how this works in our FAQ
> (https://www.mozilla.org/en-US/about/patents/), questions 1 and 3.
> The goal of MOSPL and its surrounding work is to create an open
> patent license that flips the patent right from exclusive to
> inclusive for open innovation; specifically in situations when folks
> were not taking our code (licensed under MPL, etc.) or implementing a
> spec we have licensed as a part of a standard (Opus standard, etc.).

But we'll be implementing pretty much any spec we have patents in. So it
will always be possible to take code implementing the standard (and so
our patent) under a license with MPL-level or weaker copyleft. Often, a
patent covers just a few lines of code, which can be easily extracted,
and complying with the MPL is not particularly onerous. So I'm not sure
how anyone would ever want to take _our_ patents under MOSPL given that
the terms impose more obligations than the patent license the MPL gives.

Of course, if other organizations adopt the MOSPL, that calculus may be
different. They may only provide GPLed implementations, or may not
provide an open source implementation at all.

Gerv