Recently on the OSI mailing list Carlo Piana wrote a proposed license for the reference implementation of the ISO/IEC 23006 MPEG eXtensible Middleware (MXM). The license is derived from the MPL with the removal of some of the patent conditions from the text of the original license, and clearly creates a legal boundary conditions that grants patent rights only for those who compile it only for internal purposes without direct commercial exploitation. I tend to agree on Carlo’s comment: “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.” (as a side note: I am completely and totally against software patents, and I am confident that Carlo Piana is absolutely against them as well).
Having worked in the italian ISO JTC1 chapter, I also totally agree with one point: “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.” Unfortunately, ISO still believes that patents are something that is necessary to convince companies to participate in standard groups, despite the existence of standard groups that do work very well without this policy (my belief is that the added value of standardization in terms of cost reductions are well worth the cost of participating in the creation of complex standards like MPEG, but this is for another post).
What I would like to make clear is that the real point is not if the proposed MXM license is OSI-compliant or not: the important point is why you want it to be open source. Let’s consider the various alternatives:
- the group believes that an open source implementation may receive external effort, much like the traditional open source projects, and thus reduce maintenance and extension effort. If this is the aim, then the probability of having this kind of external support is quite low, as companies would avoid it (as the license would not allow in any case a commercial use with an associated patent license), and researchers working in the area would have been perfectly satisfied with any kind of academic or research-only license.
- the group wants to increase the adoption of the standard, and the reference implementation should be used as a basis for further work to turn it into a commercial product. This falls in the same cathegory as before; why should I look at the reference implementation, if it does not grant me any potential use? The group could have simply published the source code for the reference, and said “if you want to use it, you should pay us a license for the embedded patents”.
- the group wants to have a “golden standard” to benchmark external implementations (for example, to see that the bitstreams are compliant). Again, there is no need for having an open source license.
The reality is that there is no clear motivation behind making this under an open source license, because the clear presence of patents on the implementation makes it risky or non-free to use for any commercial exploitation. Microsoft, for example, did it much better: to avoid losing their rights to enforce their patents, they paid or supported other companies to create a patent-covered software and released it under an open source license. Since the “secondary” companies do not hold any patent, with the releasing of the code they are not relieving any threat from the original Microsoft IPR, and at the same time they use a perfectly acceptable OSI-approved license.
As the purpose of the group is twofold (increase adoption of the standards, make commercial user pay for the IPR licensing) I would propose a different alternative: since the real purpose is to get paid for the patents, or to be able to enforce them in case of commercial competitors, why don’t you dual-license it with the strongest copyleft license available (at the moment, the AGPL)? This way, any competitor would be forced to be fully AGPL (and so any improvement would have to be shared, exchanging the lost licensing revenue for the maintenance cost reduction) or to pay for the license (turning everything into the traditional IPR licensing scheme).
I know, I know – this is wishful thinking. Carlo, I understand your difficult role…