Subject: Re: New angle on the patent problem
Date: Mon, 13 Sep 1999 14:06:23 -0400

>Greg Aharonian, anti-SW patent crusader, regularly rails on IBM.  At the
>same time, I'm inclined to see IBM as very friendly to certian free
>software projects:  Linux, Apache, Jikes.

I think I can say safely that IBM is in transition on this issue, and is trying
to figure out where the right place to stand might be.  As with any large
organization, there isn't universal agreement on the issue, and probably
shouldn't be.  Things look very different to someone running a unit with
dominant market share than they do to someone whose project is trying to break
into an established market.

>> [One might
>> want to word the poison pill to permit patent enforcement where the remedy is
>> honor the free software license rules retroactively.]
>I don't understand the remark in braces.

Example:  Suppose Mumbles, Inc. is redistributing open source software in binary
only form and refuses to make their changes available. One way to go after them
is to sue for patent infringement.  Going after someone for *violating* the
license should not cause the litigating company to lose their ability to use
open source products. That is, we want to be able to defend the open source
license without fear of the poison pill.

On second thought, this was a stupid idea, as there are other means of
enforcement and it would unduly complicate the language.  See below.

>     Your rights to copy, modify, and distribute the Covered Work
>     terminate in the event you seek patent infringement action on any
>     developer (original or subsequent contributor) of the Covered Work
>     for code contained within the work,...

I would propose instead:

     Your rights to copy, modify, and distribute ** any work
     distributed under the terms of the GNU General Public
     License [insert your license name here] ** terminate in
     the event that you seek patent infringement action on any
     **licensee** of the Covered Work.

Explanation of changes:

1. Lose the whole class of anything ever distributed under the license (not just
the Covered Work) if you pursue patent litigation.
2. Protection should not be restricted to developers -- end users are also
licensees and should be protected.
3. Do not limit to "code".  There might be other content embodying patents.

Actually, this wording has a side effect that I didn't intend but is kind of
cute, which is that the scope of the restriction is not limited to the open
source stuff.  If DarthVader Inc. pursues patent infringement on some unrelated
random matter against an open source licensee, they lose their open source

I'm not sure one wants to go this far, but it's interesting to contemplate.

I do NOT speak for IBM in this!!!!

Jonathan S. Shapiro