Patent language in Creative Commons Zero license renders it unfit for some "source code" uses #531
Description
Not sure if this is a "bug" or a "feature"; I want to raise a problem, but I also have a proposal for addressing it…
Problem
The Creative Commons Zero license has the text
4a. No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, licensed or otherwise affected by this document.
The Creative Commons Zero license is the only CC license which the CC organization considers suitable for computer source code. However recently, some open-source-ecosystem projects have raised the argument that the patent clause makes CC0 unsuitable for computer code. For example the "Fedora project" recently announced they would no longer allow CC0 code in Fedora at all:
The argument is that a typical OSS license which discusses code but does not mention patents (such as the MIT license) could be argued to be implicitly granting patent rights, but the CC0 patent clause prevents this, creating legal risk. I am not a lawyer and can't evaluate this argument, but it doesn't matter. If anyone anywhere feels CC0 blocks them from being able to use CC0'd code (and Fedora is a big anyone— it is a major Linux distribution, sponsored by IBM) where public domain would have been acceptable, then CC0 is not serving its goal as "public domain but more so".
How this affects me
I often release code, art and writing as Creative Commons Zero. Upon the announcement by Fedora, I was scrambling to figure out what I needed to do to ensure that my previously released CC0 source code could be used for the purpose I intended it to be used.
Proposed solution
CC should release a variant of CC0 (for example it could be known as "Creative Commons Zero Plus Patent License" / SPDX CC0-1.0-patent), which is the same as CC0 except section 4a is replaced with an appropriate explicit patent grant, like one finds in the BSD 2-Clause Plus Patent License.
How this solution would address my problem
Since learning my use of CC0 was causing problems, I have been dual-licensing new CC0-candidate code as "BSD 2-Clause Plus Patent" and "Zero-Clause BSD" (the license which, in the fedoraproject.org link above, the Fedora member recommends as CC0-equivalent). This is not quite satisfying to me, for two reasons:
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I now have to use two separate simultaneous licenses to cover all aspects of a single work (eg to cover both the code copyright and patent interests, if I want both to be explicit). There is no "Zero-clause BSD plus patent grant" in the world currently, and I am not the best person to homebrew a new software license.
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Much of what I create is "creative code"; e.g., it is a piece of art expressed in the medium of code, or a software program which incorporates art assets (like a video game). In other words, it is likely to be a mixture of computer code and other types of copyrightable material, such as PNGs, OGGs or fonts. Software licenses, such as BSD, don't cover the non-code parts of such a program well. I found Creative Commons Zero convenient for this type of work, because it applied equally to both my "assets" and my code.
A single "CC0 plus patent grant" would simplify both of these issues.
Why not just modify CC0 itself?
If the patent clause is problematic, then why not just remove it, or replace it with a patent grant and call that CC0 1.1? I think two licenses is the way to go because the original "patents not affected" is what some licensors probably want. Corporate entities tend to be highly avoidant of anything that might weaken their patents (see the lengths some companies go to to avoid using GPL3). Imagine a corporation who wants to release as CC0 something non-code (for example, a piece of software documentation, for which the program described could make use of patents). They would probably want to avoid even the implication they could be surrendering patents by releasing that item as CC0, so they would prefer to use the original text while I, releasing code, would prefer to use a version with patent grant. (And the third possibility, removing 4a completely and leaving it ambiguous, would be useful to no one).
Note
Since the change suggested above would require "billable hours" on CC0 anyway, this also might be a convenient time to address #532 , which has been outstanding for a while ( for example see my email to info@creativecommons.org from 2015 Apr 15 :P )