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Debian "Position" on Software Patents

in February, Stefano Zacchiroli added a document titled "Debian Position on Software Patents" to our website: http://www.debian.org/legal/patent

This document includes both a position and a policy regarding software patents. It states:

  1. Debian will not knowingly distribute software encumbered by patents; Debian contributors should not package or distribute software they know to infringe a patent.

  2. Debian will not accept a patent license that is inconsistent with the Debian Social Contract or Debian Free Software Guidelines.

  3. Unless communications related to patents are subject to attorney-client privilege, community members may be forced to produce them in a lawsuit. Also, patent concerns expressed publicly may turn out to be unfounded but create a good deal of fear, uncertainty, and doubt in the meantime. Therefore, please refrain from posting patent concerns publicly or discussing patents outside of communication with legal counsel, where they are subject to attorney-client privilege.

  4. Patent risks affect the entire community. If you are concerned about a specific patent, please do not keep it to yourself — notify legal counsel.

  5. All communication related to specific patent risk should be directed to patents@debian.org, which is maintained under the rules of attorney-client privilege. The risk will be evaluated and any necessary response will be made directly to affected parties.

As far as I know, this document was not publically discussed before being published (see http://anonscm.debian.org/viewvc/webwml/webwml/english/legal/patent.wml?view=log and http://lists.debian.org/debian-project/2012/02/msg00117.html ).

I see this as amounting to:

  1. A message to both users and contributors that patent infringement in Debian is unwanted.
  2. A message to both users and contributors that Debian will only accept to ship software covered by patents if the patents concerned were licensed free of restrictions (DFSG-like requirements).
  3. A request to share specific patent concerns.
  4. An indication that a private contact point for sharing specific patent concerns exists.
  5. A request/demand that people concerned with specific patent issues do not share their concerns, except with the contact point mentioned in 3.

1. is fairly obvious. 2. is welcome, although I suppose this is just officializing a stance we were already taking. 3. can be considered a specific case of our pretty obvious desire to have our bugs reported. 4. is excellent news. 5. is, however, anti-transparency, and IMO against our ethics. Such a position statement cannot be made prior to discussion. Since it looks like this wasn't discussed yet, I am hereby lauching a public discussion on 5. This is not a poll, but I'd like to see the opinions of others on it. and whether it is unanimous or not.

Leaving the validity of 5. aside, I find that this document is very confusing. It's not just a policy, and it's talking to several groups. I suggest:

  • To separe 1. , 3. and 4. from the rest. These could be grouped in a document on intellectual property explaining that Debian takes into account both copyright and patents and offering contact points for reporting/discussing specific IP issues.
  • To consider merging 2. with the social contract: http://www.debian.org/social_contract
    The free software guidelines could be modified to specify that our freedom requirements apply not only to copyright licenses, but also to patent licenses.
    A modification of a Foundation Document requires a 3:1 majority, but I don't think this would be hard to reach.

Thanks to MJ Ray for his reply when I asked about this document's origins.

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