There are some open source advocates who have framed this debate somewhat broadly by suggesting that a RAND-based license which includes a royalty is incompatible with open source licenses. For example, by using phrases such as “RAND discriminates against Open Source developers” or “RAND is incompatible with OSS,” they seek to reinforce this broad problem statement.
It is incumbent that scholars and policymakers understand the meaning of numerous open source licenses that are currently in use as opposed to thinking of OSS licenses as a monolithic and homogenous concept. The scope of the debate should be reshaped into a discussion of how a subset of OSS licenses, perhaps the GPL family of licenses, may or may not conflict with RAND-based licensing. In fact, there are a significant number of examples and approaches in open source licensing that create no tension with RAND-based standards licensing.
The OSI’s Open Source Definition is a set of criteria used to judge whether a particular code license can be certified (by OSI) as an “Open Source” license. There is no reason why a RAND patent license would need to be certified by OSI so the application of the OSI principles in this situation is misplaced. OSI’s definition merely states that an OSS license may not require the recipients of the code to pay the code distributor a royalty. It does not prohibit the code distributor from taking a patent license from a third party and paying per unit royalties on the copies of code that it distributes under an OSS license. Indeed, there are clearly OSI approved licenses that do allow such third-party patent licenses. The key question is whether the operative OSS license (OSI certified or otherwise) contains a requirement or limitation that prohibits the code distributor from taking such a patent license.
There are currently over 50 open source licenses in use. Because each OSS license is somewhat unique, a claim that all OSS licenses are impacted unfavorably by a RAND-based standards license would require a careful review of some key clauses in each OSS license with specific identification of the RAND term that is in conflict with a term of an identified OSS license. Only after this review is conducted, can we say decide whether there is a tension between a RAND-based license and any specific OSS license. The fact that there may be some tension between a RAND-based license and one OSS license does not imply that this will be true for other OSS licenses.
Therefore, we need to create a license taxonomy or license attribute analysis that we can use to better understand the interplay between OSS licenses and RAND-based licenses in the standards-setting arena. The key components of this taxonomy are license grants, conditions, or restrictions and a group of other related provisions.
Fundamentally, an open source license is about making computer source code available for modification and redistribution by recipients including those who are downstream from the recipients. A key component of an OSS license is therefore the license grant clauses that enable recipients to make use of the source code. There may be patent grants which may relate to claims that read on some or all of the code received from the distributor under the license. A significant point to understand about the patent grant in an OSS license is that the grant does not necessarily result in a royalty-free grant of all patents that the distributor holds that read on the code.
Such an understanding is vital to maintaining a vibrant ICT sector where there is significant licensing of both proprietary and open source software in standards development and in other scenarios, and towards the continued development of a robust ICT sector where a plethora of different business models are allowed to flourish.
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