Subject: Re: New angle on the patent problem
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Mon, 13 Sep 1999 18:44:33 +0000

shapj@us.ibm.com wrote:
> 

> >> [One might
> >> want to word the poison pill to permit patent enforcement where the remedy is
> to
> >> 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.

The work by Mumbles, a derivative worked based on the original but
including Mumble's modifications, is no longer covered by the license as
terms have been violated by Mumble's refusal to make their changes
available.  Patent actions against Mumbles (but not to, say, a
downstream recipient who'd received the work _and_ the source and was
freely redistributing both and otherwise complying with the license)
would *not* reflect an action against a licensee for a work covered
under the license, as the work isn't covered once the license is
terminated.  That's clear, like crystal, right?

In other words:  I don't think the distinction is necessary.


> >     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.

Can't do that.  The license didn't grant license to the class of works,
but only to the present covered work.  However it can be revoked on the
basis of actions against the class.  My clause was pull, yours is push. 
I don't think the push mechanism can be made legally binding.  That's
why I constructed a trigger _affecting the current work_ based on
actions _affecting any of a class of works_.

> 2. Protection should not be restricted to developers -- end users are also
> licensees and should be protected.

Yes, absolutely.  Good point.

> 3. Do not limit to "code".  There might be other content embodying patents.

Fair enough.  Though I'd like to avoid granting license only required
in, say, hardware peripherally associated with the software.  The
conventional language I've seen is similar to:

> [grant of license to patents] to the extent necessary to make, 
> have made, use, and sell the Covered Work (or portions) without 
> infringement, and without any greater extent than shall be 
> necessary for these purposes.
 

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

I for one don't.  I think free software is stepping far enough trying to
defend its own access to patents (for use in open source).  Why take on
the additional burden of trying to secure access to patents for non-free
use as well?  IMO, free software implies a freely granted gift of access
to copyright.  It should be balanced by a freely granted gift of access
to patent license.  Non-free software doesn't make the first offer, and
shouldn't unconditionally require the second.
 
> I do NOT speak for IBM in this!!!!

Oh damn, and just when I was getting my hopes up....

<g>
 
> Jonathan S. Shapiro

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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