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Re: [Bug 1292] New: What is the correct license expression for a project with an additional patent license?

Kyle Mitchell
 

Many thanks for your generous reply, and for sending so quickly.

Forgive me if I'm behind on general discussions about the purpose and
function of SPDX expressions. I understood their purpose rather more as
a coding system for what terms purportedly apply than a way to state a
fully formed legal conclusion.

I suppose I tended toward this view especially given that American
lawyers are known to differ on what various standard licenses actually
do. The license plus additional patent grant situation exacerbates these
problems, I think, in a few ways:

1. There likely won't be any record of acceptance of either the
BSD-3-Clause terms or the patent grant terms. Defendants will claim
to have accepted whatever licenses grant protection they need once
hauled into court.

2. The existence of the additional patent grant might very well affect
an American court's view of what (if any) patent license is implied
by BSD-3-Clause. General principles of contract interpretation will
read both licenses, as contemporaneous agreements on the same subject
matter, together.

3. The patent license and BSD license are separate files in the source
code repository, and I think it clear that clause 1 of the BSD
license does _not_ require redistribution with a copy of the
additional patent license.

4. On the other hand, the additional grant is entitled "Additional
Grant...", and the read-me file and other documentation repeatedly
mention the application of both licenses.

One upshot is that a program designed to check SPDX metadata against a
white list of licenses may very well want to assess the "BSD-3-Clause"
in (BSD-3-Clause) differently than in (BSD-3-Clause AND/OR/WITH
FB-Patents-2.0).

If the answer here is to allow variants with each of AND, OR, and WITH,
does that mean that the additional patent grant should hypothetically
seek both a license identifier and a license exception identifier?
Better to roll the BSD-3-Clause and additional patent grant into one
"Facebook BSD License", akin to the Apple MIT variant (AML)?

Many thanks,
K

On Mon, Jun 15, 2015 at 12:38:02PM +0100, Sam Ellis wrote:
Subject: [Bug 1292] New: What is the correct license
expression for a project with an additional patent license?
https://bugs.linuxfoundation.org/show_bug.cgi?id=1292
I will take the opportunity to offer an opinion to the forums on this
question that is raised above:

I think first and foremost this is a question around interpretation
of the licenses. Only when you have that interpretation can you
decide how to represent that using SPDX syntax. I see two possible
interpretations:

One interpretation is that that using the software you must agree to
both the BSD-3-Clause and the patent grant and have no choice in the
matter.

Another interpretation is that you must agree to the use of the
BSD-3-Clause license, but you have a choice as to whether or not to
accept the patent grant. If you accept the patent grant then it is the
same outcome as above. If you choose to not take the patent grant then
you run the risk that the software does use some Facebook patents and
you are now infringing them.

In terms of SPDX representation, I would suggest the former case comes
out as one of these two:

(BSD-3-Clause AND FB-Patents-2.0)
(BSD-3-Clause WITH FB-Patents-2.0)

And for the second interpretation I would suggest one of these two:

(BSD-3-Clause OR (BSD-3-Clause AND FB-Patents-2.0))
(BSD-3-Clause OR (BSD-3-Clause WITH FB-Patents-2.0))

As to whether to use the AND or WITH variants, I again think this
comes down to the interpretation of the patent grant. Does the patent
grant stand alone as a fully formed license (in which case choose AND)
or does it depend on some other license (in which case choose WITH)?

In summary I think SPDX license expressions can adequately represent
all of these cases. The question that SPDX can’t answer is which
legal interpretation to choose.

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