[cc-licenses] input requested: BY-SA/GPL compatibility - license scope

Sarah Pearson sarah at creativecommons.org
Mon Feb 23 07:15:19 EST 2015

This is the second discussion prompt relating to one-way compatibility from
BY-SA to the GPLv3. This email relates to license scope, with a particular
focus on how the two licenses deal with patent rights.

As we all know, the tone and scope of the two licenses differ, due largely
to the fact that the GPLv3 was designed for use with software and
software-like works. Of course, both licenses are primarily designed to
license copyright, but each license also covers some rights closely related
to copyright, which means the scope of each varies slightly. GPL covers
“copyright-like laws that apply to other kinds of works, such as
semiconductor masks,” while BY-SA covers “Copyright and Similar Rights,”
which is defined to include neighboring rights, sui generis database
rights, and other closely-related rights.

The most significant difference in license scope is the treatment of patent
rights. BY-SA expressly reserves patent rights to the licensor, while GPLv3
expressly includes a patent grant from each contributor.

Because patent rights are expressly excluded from BY-SA, there is no
reliable claim of an implied license to do things with a BY-SA licensed
work that implicate patent rights. From a compatibility perspective, this
means that when a BY-SA work is adapted into a GPL-licensed project, downstream
users of the project would not have patent rights to the BY-SA work.
(Although the GPL includes a patent license, the scope of rights licensed
by the BY-SA licensor cannot be expanded because an adapter applies the
GPL, just as it is not expanded when an adapter applies a later version of
BY-SA that licenses more rights than the original.)

This problem is largely academic, given how rarely BY-SA works are subject
to patents that would be implicated by simply reproducing or adapting the
content. (In fact, CC has not yet been able to come up with a realistic use
case, but we welcome concrete examples of those from our community that we
may be overlooking.) Nonetheless, as a theoretical matter, it creates a
problem because it is possible to imagine a downstream user of a GPL
project mistakenly assuming she does not have to worry about patent rights
even though a BY-SA work is adapted into the project.

We have asked the FSF to weigh in on this issue. We are also curious what
all of you think. Does the unlikely but serious risk of patent problems for
downstream users outweigh the benefits of compatibility? Can we do enough
to alleviate this risk with proper education for reusers?

We look forward to your input.
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