Subject: RE: Crafting a special kind of license for a very special standard.
From: Grant Robertson <grantsr@gmail.com>
Date: Sat, 14 Apr 2007 19:34:46 -0500

Thanks for your help and your patience. You know what is interesting
is that when I mentioned protecting my standard with a patent in the
alt.text.xml newsgroup everyone said I couldn't patent a standard.
They gave me all these reasons why I should just copyright it and use
a copyright license to protect it.

> From: Matthew Flaschen
> 
> An implementation of a standard is not derived from the 
> standard in the copyright law sense.  Thus, even if you GPLed 
> the standard, proprietary software could still implement it.

OK, that is good to know. Are you really darn sure about this or is
this just your opinion. Not that I doubt you, but I don't want to
change directions yet again based on a hunch.


> > The GPL even claims the right to force a secondary user to 
> release ALL 
> > the code that they themselves wrote separately just because 
> they used 
> > one piece of GPLed code.
> 
> That's not true.  This only applies if the new work the 
> distribute can be considered a derivative work of the original.

I thought any inclusion of other GPLed code made all of the associated
code into a derivative work. Do you mean to say that I could include a
few routines or classes from some GPLed code without releasing the
whole thing under GPL?


> It is not copyright infringement to implement the 
> methods described in a copyrighted work.  If I buy a book on 
> mousetraps, I don't need the author's permission to build and 
> sell their new clever mousetrap.  If the mousetrap invention 
> were patented, then I would.  The same applies for a 
> standard.  If I acquire a copy of the standard, I'm free to 
> implement it without special authorization, unless there are 
> relevant patents.

See, now that is what I thought in the first place. But I had people
telling me that a copyright would protect the standard. Geez, now what
the heck am I gonna do?


> [Trade Secret...] require everyone to sign a contract.

No, I am certainly not going to go this route. 

> It wouldn't be necessary to make it read like the original.  
> If it was written very differently, I don't think it would be 
> a copyright infringement.  As an example, lots of people make 
> explanations (sometimes entire books) based on W3C 
> recommendations and the W3C has no copyright claim against them.

Damn! That's a really good point too. Half of the books I have read on
XML read like all they did is slightly reword what is right on the W3C
website. If they can do this to the W3C then they could do it to me. 


> plagiarism is not a crime.  It is not 
> copyright infringement, which is.

Another good point.


> Open source licenses 
> are necessary because by default I can't make a new version 
> of a copyrighted program; that's copyright infringement.  
> Thus, if the author wants to let me, they must grant 
> permission.  Every open source license (with the exception of 
> the thus-far unpopular contract-based ones) is such a permission.

So, what you are saying is that the copyright law imposes the
restrictions. All a copyright license can do is remove some of those
restrictions. A license cannot impose extra restrictions. That makes
sense, unfortunately. 


>  The W3C 
> link I gave clearly implies patents are the real issue.

So, here is my problem. I am flat broke. I live on financial aid. I
can't afford to even file for a provisional patent let alone a real
one. I can't get help from my university because they want to be able
to charge market rate license fees and make a profit. That would kill
the standard.



> > Technically, one can only patent the method of 
> implementation itself 
> > and not the idea the method implements.
> 
> In theory maybe (it depends what you mean by idea).  In 
> practice, the USPTO has a bad habit of completely ignoring 
> such distinctions.

I know they ignore them for big corporations all the time. But I doubt
they would ignore them for me. And if they did, then there would be a
hole in my patent the size of a truck for the big corporations to
drive their teams of lawyers through. 


> Actually, there's a good chance with the right patent lawyer 
> you could.
>    It might not hold up in court, but as long as you 
> intimidate your opponents you won't need to sue, and it could 
> work out fine.

Unfortunately, a good patent lawyer costs a lot of money which I don't
have available and my "opponents" would be Microsoft and the big
textbook publishing firms. You can't intimidate those guys with a
patent. All my time and all the organization's money would go into the
sinkhole of protecting the patent. 


> This seems outside of OSI's scope since you're trying to 
> license a standard, not software.

OK, but I would still like some more advice from open-source
developers. I want to design my standard and my license (whether
copyright or patent) so that it promotes and supports open-source
development of software to implement the standard. I want students to
have lots of different options as to software they can use to study
the material authored using this standard. 


> I wish you the best of luck; try not to let the legal issues 
> bog you down too much, but do think them out.

Thanks.