Subject: Re: Why software patents are bad
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>

I sent Karsten an even longer reply; I'd be happy to send interested
parties a copy, but it went rather far afield.  (It's written for the
public, Karsten, feel free to quote it if you think parts should go
back into the main thread.)

The "cut-for-airline-viewing" version follows.

***** On enforcement:

>>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

    kms> Installation of GPLd "Public License" software on a work
    kms> system means:

    kms>  - The employer explicitly approves, allows, or certifies this.
    kms>  - The employer tacitly approves, allows, or certifies this.
    kms>  - The employee is acting as an agent of the employer.
    kms>  - The employee is installing unauthorized personal software
    kms>    on a work machine.

So?  In case 3 I will stipulate that the company is then the licensee.
In cases 1, 2 and 4 (in varying degrees) it is not clear to me.  Most
companies _require_ employees to wear shirts (or even buy uniforms) on
the premises; does that mean they own the clothing?  Some employees
choose to write memos with personally purchased pens; does that mean
the company has a license on the pens?

I would like the opinion of a real lawyer on whether _approving an
employee's decision to install personally licensed software_ on a
company machine constitutes a license to the company which can be
revoked.

I really can't see how this can be true.  The copyright holder isn't a
party to the approval transaction.

E.g., I paid for a copy of "GAMS" out of my own pocket (the University
of Tsukuba refused to generate a purchase order for goods denominated
in dollars).  I am the licensee (under the laws of Maryland, IIRC) on
paper.  I have implicit employer permission to install software
necessary to my research on my machines; fallout from past piracy[1]
fiascos show that the basic requirement for permission is not
ownership of the software, but the user's possession of a valid
license.  Furthermore, I was unofficially advised that I should buy
the software myself if I needed it.

Tsukuba University can order me to uninstall the software from their
machine, of course.  But I don't see how GAMS can (incidentally)
revoke my license to use GAMS on that machine by taking action against
Tsukuba University.  They have _no_ legal relationship to Tsukuba
University

Of course, this leaves action directly against me to affect my use of
that program on that machine.  In the case of proprietary software,
taking legal action against me would be nasty, but I don't see why
they should shrink from thatwhen they want to turn up the heat against
Tsukuba University (if the license permits, of course).  But in the
case of free software, you have to show cause:

    In order for these freedoms to be real, they must be
    irrevocable as long as you do nothing wrong; if the developer
    of the software has the power to revoke the license, even
    though you have not given cause, the software is not free.

                            http://www.gnu.org/philosophy/free-sw.html

Hm?

***** On "definition of public license":

    kms> What is meant by "Public License"?  Is it a license that is
    kms> negotiated, one-on-one, with every member of the public, or a

It's not "negotiated", it is granted outright to each and every entity 
which is legally capable of entering into a contract, subject only to
the assent of the licensee to the terms of the contract.  Whether
that's the definition of "public license" or not, it is true AFAIK,
and that's what _I_ meant.

***** On the advantages of Copyleft to businesses:

    kms> We discussed this in the IEEE SW column and discussion.  IMO
    kms> copyleft provides a stronger return of development gains than
    kms> other, less restrictive, licenses.

True for Copyleft, which leaves the administrators of copyright for a
program in an unrestricted monopoly position with respect to future
proprietary use of the code, an option with non-negative value no
matter what happens.  The poison pill is another matter, since it
affects your current IP portfolio's value negatively by conceding the
monopoly, and it affects the value of the program negatively by making
its use risky to some potential customers.  (There are positive
effects as well, of course.  But given a free license, copyleft is
unambiguously good for the author; the poison pill's effects are
ambiguous.)

***** On the targets and ethics of the poison pill:

    kms> What is the cost of not being able to use free software?

High.  And I don't want to impose it on people who simply work for a
commercial enterprise following commercial incentives.

What is the difference between restricting the freedom

    of people who would like to use free tools in work completely
    unrelated to patented software who happen to be employed in a
    company, another of whose divisions is prosecuting an IP
    infringement action,

and 

    of people to use a tool to develop software intended to be
    placed under a completely closed source license?

Why, the second immediately makes the license unfree.  That's all.  I
don't care that the danger from software patents is perceived to be
greater than the danger from people who develop non-free software
(ssh, Qt, WordPerfect) using free software.  Both activities are
dangerous to free software.  Thus I have heard.

Why are people who _intentionally_ do the latter deserving of licenses
and people _accidentally_ stuck in the former situation not?

This is what I don't understand.

In the meantime you're attacking mostly users:

    kms> And there's the usual GPL lawsuit paradox -- all we're
    kms> really asking for is that you keep the code free, and uphold
    kms> your end of the bargain and grant license to use of your
    kms> patents.

That would be nice, _except that the "you" possessing a consciousness
capable of noticing the loss of the right to use the software _is_
typically working to promote free software and _doesn't_ have any
control over the patents_.[2]
 
NeXT was an unambiguous win for free software, and in particular for
Copyleft.  No cognitive dissonance about the "you" in question there;
a purely financial decision for them.

But I don't see attacking users (as opposed to developers) as being
good strategy, aside from its dubious ethics in the context of free
software.  Reread the "Disney" section in Shapiro and Varian
(pp. 88--89).


Footnotes: 
[1]  In the case of this University, the word "piracy" is justified,
because of their hypocritical approach to IP enforcement.

[2]  And quite possibly vehemently opposes software patents in fora
internal to the organization as well as in public.


-- 
University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
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What are those two straight lines for?  "Free software rules."