brief “CC-licensed specification” rant

Posted on by Luis Villa

The next time I hear “we’ve licensed the specification under Creative Commons so anyone can implement the spec”, I’m going to scream at someone.1

To take a list from a Microsoft license I read yesterday, implementing a spec may require (among other things) licensing of “pending utility and design patent claims, copyrights, trade dress and trademark rights.” Putting a specification under a CC license gives you a copyright license to the text of the specification; it does not give license to the necessary trademarks, or to the patents, and depending on the license chosen, may not even give you the right to make a derivative work of the license (aka, the implementation.)

So, creative commons folks: could you please, please scream for me? Or better yet, work with SFLC to create a good license for specifications (since they aren’t happy with the OSP), and then ask people who’ve ‘cc licensed’ specifications to use that instead? KTHXBYE. :)

Clarification later: 

I said, poorly: “Putting a specification under a CC license… depending on the license chosen, may not even give you the right to make a derivative work of the license (aka, the implementation.)” This was confusing, because I deliberately cut out (in order to be brief) any discussion of what a derivative of the CC-licensed work would be.

What I should have said was something like:
“CC licenses, used this way, definitely give you a right to edit and redistribute and change the text of the specification. However, probably 99 out of 100 lawyers would tell you that a CC license on the spec does not actually say anything at all about whether or not you can implement the specification. The remaining 1 out of 100 lawyers would say that the license gives you permission because the implementation is a derivative of the specification. If that is the case, and the implementation is a derivative, then the CC license gave you the permissions to implement- but they come with the standard CC restrictions as well! So either way the licensor probably doesn’t get what they really wanted.”

  1. Yes, someone from MS did it today, but I don’t blame them- this is all confusing and they were trying hard to do the right thing. [↩]

Published by Luis Villa

15 thoughts on “brief “CC-licensed specification” rant”

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  4. But an author of a specification can’t know whether someone else might claim a patent that has to be infringed by any implementation, and isn’t likely to be eager to promise otherwise.

  5. Duh :) That’s true of any specification and any set of patents; the MS license I quoted from there doesn’t say ‘there are no patents’; it says ‘we will not assert any patents we have.’ Ditto trademarks, etc., etc.

  6. Yeah, so as an offending speaker from Microsoft:

    What should we do here? I agree with you on the problem statement (that CC is a copyright, not an IP licensing statement). Let’s all presume for a moment that our intent is to cause the end result that we’ve stated: for example, that we want the OpenServices Format to be free for anyone to implement, and to achieve that end we’d like to state that the spec is placed in the public domain and we would RF-license any IP we own that might be infringed upon by an implementation of said spec. How should we best make that happen, where “best” includes both legal and perception concerns?

  7. (That’s not meant to be snide; I’m seriously asking. After researching problem, doing design, getting buyoff up the management chain to “give it away for free,” how do we make that “make it free” as quick and easy as possible? It’s intended to be a discussion question, not a defense.)

  8. Chris:

    first, not at all taken as snide- it’s a real, serious, hard question.

    second, I apologize- I had intended to make it more clear that I don’t blame you; for a long time CC has looked the other way when people have done this. So to the extent there is any blame here, I place it on CC; you tried to do the right thing and they failed you by not correcting the example others set for you.

    third: Honestly, I think for you the best solution may be the MS Open Specification Promise- it is comprehensive and straightforward. Not everyone trusts it yet (as the link above mentioned), but there are no better standardized alternatives, and on the plus side, if it is ‘fixed’, your team gets those fixes for free.

    That said, I have no idea how hard that process is to use inside Microsoft, and I hope that CC/OSI/others can step up to provide a good alternative for lightweight situations like yours- I’m beginning to poke around, because I think this situation highlights that it is a very real need.

  9. No, you’re totally right; I didn’t take it personally, but this is cheating a bit.

    On MSOSP – actually, the process would be fairly simple internally, I think. I am worried about the lack of trust there.

  11. Chris: sigh. The OSP situation frustrates me- you guys seem to be making a very honest effort there, and getting very little credit for it.

    Honestly, my critique here is probably just legal nitpicking- I wouldn’t worry about it too much, since so many others do it too- your intent is made clear.

    Now, I’ll get back to nagging people about doing something better…

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