diff --git a/content/getting-started/licensing.md b/content/getting-started/licensing.md index 0a76570..187da3f 100644 --- a/content/getting-started/licensing.md +++ b/content/getting-started/licensing.md @@ -45,9 +45,9 @@ project to remain small (e.g. less than 300 lines)? - Yes --> Do you want to allow people to use your code as a library and not disclose the source-code of their main program? - No --> we recommend using the **GPL-3.0-or-later** license - Yes --> we recommend using the **LGPL-3.0-or-later** license -- Yes --> Do you want to be able to sue users of your code for [patent infringement](#patent-usage) implemented in the code? - - No --> We recommend using the **Apache-2.0** license - - Yes --> We recommend using the **MIT** license +- Yes --> Do you want an explicit patent grant and retaliation clause in your license? + - Yes --> We recommend using the **Apache-2.0** license + - No --> We recommend using the **MIT** license ## Correctly applying a license @@ -100,17 +100,20 @@ limited versions (crippleware), advertising-supported software (e.g. antivirus), ### Patent usage -Some permissive/temporarily-open licenses like the MIT license do not contain a patent provision granting the users the -right to use their patents. +Some permissive/temporarily-open licenses like the MIT license do not contain an explicit patent provision +granting the users the right to use their patents. +However, legal analysis suggests that the MIT License's broad grant — +"permission to deal in the Software without restriction, including without limitation the rights to use, copy, +modify, merge, publish, distribute, sublicense, and/or sell copies of the Software" — may constitute an +[implicit patent license](https://opensource.com/article/18/3/patent-grant-mit-license) as well, since the grant is +not limited to any particular flavor of intellectual property rights. +Nonetheless, the absence of an explicit patent clause creates legal uncertainty compared to licenses like Apache-2.0, +which contains a clearly defined patent grant and retaliation clause. For example, the code might be licensed under the MIT license, but implements an algorithm which is protected by a patent. -In this case, the license might allow to copy, modify and distribute the code but at the same time does not guarantee -the right to use the patented algorithm. -It is a common argument in favour of the MIT license to claim that no public lawsuit has ever been conducted yet. -Still, the threat to be sued remains, and it can be used to exert pressure. Some, if not most, license disputes moreover -are settled even [before reaching the court](https://www.gnu.org/philosophy/enforcing-gpl.en.html) and could therefore -leave no trace. +In this case, while the license may implicitly cover the use of that patent, the lack of explicit language means +the right to use the patented algorithm is less certain than with a license containing an express patent provision. Even Google [avoided the use of the MIT license when developing Android](https://source.android.com/setup/start/licenses), -presumably because of the missing patent provision. +presumably because of the implicit rather than explicit patent grant. For further information on "patents and free software", head over to [this Wikipedia article](https://en.wikipedia.org/wiki/Software_patents_and_free_software). @@ -146,7 +149,8 @@ For more information on license compatibility, we recommend the commented [licen The open-source community is represented by a variety of groups with different, and sometimes opposite, interests. For example, the prominent websites [ChooseALicense.com](https://choosealicense.com) is curated by GitHub and can be assumed to reflect at least partially the interests of Microsoft; this website presents, for example GPL last on the -front page and it is silent about the missing patent clause in the MIT license both in the front page and in the +front page and it does not discuss the implicit (rather than explicit) patent grant in the MIT license +either on the front page or on the [dedicated page](https://choosealicense.com/licenses/mit/). Moreover, the wording "I want it simple and permissive" can induce people to favour the MIT license; laypeople will want to have legal matters simple, and "permissive" sounds like fair and good.