Subject: Re: New angle on the patent problem
From: "Karsten M. Self" <>
Date: Mon, 20 Sep 1999 18:10:01 -0700

Items of agreement abbreviated.  Response cut to FSB list to avoid
duplicate mailings.

Assaf Arkin wrote:
> > 1). License for use of Linux specifies that patent infringement action
> > against any of a class of software works will trigger the termination

> We already hashed that one. The language was changed so that it applies
> to a particular piece of software (say Emacs), but the license is


> > 2). The company can certainly claim patent infringement, but they have
> > to accept the consequences of this claim.  The existence of a defense
> > doesn't make an action impossible, it merely attaches a cost to it.
> One point that I tried to raise, is that legal recourse and remedy are
> an issue, but not the issue. A typical patent litigation costs in excess
> of $0.5m dollar (probably way more when we're talking about software).
> How many litigations can the FSF (or any other entity) get involved in?
> The purpose of the license is to prevent the possibility of litigation.
> If I believe that I will most likely loose in a legal action, I will not
> take one. If I believe I might win and make a change, I might consider
> taking legal action.
> It can work both ways, however. The proposed change could work so well,
> that no company will ever file a patent infrignement against open
> source, and in fact, no company will ever bother to use or contribute to
> open source. We can say it's their lose, but it's also ours.

I suspect we may be in violent agreement here.

The figures I'm familiar with for patent litigation are US$100k
pretrial, US$1m if taken to trial.  I can't credit sources, but they're
numbers I recall and have used around people who would probably correct
me if I was wrong.

I'm given to understand that the costs are less for copyright suits. 
More to the point, copyright is much more cut and dried, and much less
risky to the rightholder, than patent infringement.  The cost of
litigation is only a part of the argument -- it's the strategy of taking
a weak and expensive tool (patent) against a strong and inexpensive one
(copyright).  The patent holder is likely to lose the copyright case,
probably in short order, and may also lose the patent case -- and the

One of the common complaints against the GNU GPL is that it hasn't gone
to trial.  I see this as a strength -- the GPL's basis in copyright is
sufficiently strong that the case reduces to proof of copyright
ownership and infringement.  The defendant is very likely to lose.  The
most infamous case (g++ => NeXT) which came closest to blows was settled
out of trial.

Too, though, GPL cases haven't involved settlements, the "lose"
proposition has been simply to open the source.  It's a fairly small
loss, and would probably play pretty well in front of a jury "all we're
asking is that if you base your work on our code, that you release both
our code and your modifications -- we're not money-sucking scoundrels". 
A tear came to the mother's eye....
> > 3). Conveniently ignoring the fact that the spirit of copyright is that
> Not conveniently ignoring, just presenting the other view in a debate.
> The rights of copyright holders are also valid, and in fact, they will
> server to try and prevent the patent claimer from using software under
> the license. I just took that side for granted, but thanks for pointing
> that out.

I don't believe I used the phrase, but the concept of a balance of
powers, and of opposing forces, is central to much US law and
government.  What appears at times to be irrational contradiction might
also be taken as a self-correcting system.
> > Not being intimately
> > familiar with law, I'm not sure exactly how a license can be made
> > seperable or inseperable (valid in part if a portion is found not
> > binding, or not valid in any part if a part is found not binding).
> Example (source: IBM):
> "If any provision of this Agreement is invalid or unenforceable under
> applicable law, it shall not affect the validity or enforceability of
> the remainder of the terms of this Agreement, and without further action
> by the parties hereto, such provision shall be reformed to the minimum
> extent necessary to make such provision valid and enforceable."

Yes, a separability clause.  Contracts can also have non-separability
clauses which state that certain conditions are in no way separable from
the rest of the contract, and that if such sections are held to be
invalid or unenforceable, that the entire contract is void.  Use depends
on objectives.

> > to poor IP management), I don't know of any instances in which a
> > reasonable claim to copyright (significant work of original authorship
> > fixed in tangible media) was been rescinded by the courts.
> Lotus 1-2-3 against the world and Apple on UI? Both cases argued that UI
> can be subject to copyright, something to do with patterns and design.

Addressed the scope of copyright, not the claim of copyright on a
particular work.  In Lotus v. Borland, menus where held to be
noncopyrightable.  In Apple v. Microsoft, "look and feel" was held to be
noncopyrightable.  The courts weren't specifically excluding Lotus and
Apple from copyright claims to these aspects of a work, but were
defining the general bounds of coverage.  See also Baker v. Selden.
> > > A license that prevents them from using Emacs is reasonable, a license
> > > that prevents them from using all GNU code, if GNU is a substantial code
> > > base, is unreasoable and opposing the rights granted in patent law.
> >
> > 5). I don't know where you're reading that one license closes all access
> > to all GNU works -- see my reiteration of the license terms above in
> > 1).
> This is exactly what you said, but you were talking a license
> perspective and I was talking a broader view.
> Action against Emacs -> termination of all GNU licenses
> Action against Emacs -> action against GNU -> termination of license of
> each GNU software
> The end result is the same.


But the mechanism is very, very different, and the distinction should be
made to emphasize the legal model under which this takes place.

Note also that the termination clause effectively becomes an enablement
mechanism -- triggering the termination clause *enables*
copyrightholders of software within the class to seek legal remedy.  If
no copyrightholders have an interest in doing so, the clause is
effectively moot.  There is an element of popularity contest -- or less
pejoratively, a check and balance -- against unrestrained legal action. 
I think this may address some of Stephen Turnbull's concerns about abuse
of the system.
> > 6). Substantiate your claim that the clause (as I've stated it, not as
> > you're trying to read it) would or would not be reasonable, citing case
> > law or other precedent. You've made a legal opinion, I'd like to see
> > supporting evidence.
> [....]a court can
> (and did many times) invalidate a contract because the contract was did
> not agree with other provisions of the law which gave protection.
> For example, if I have a work contract with an individual and the price
> is below minimum wage, the court will consider that "minimum wage" is
> there to protect the individual, and will enforce me to pay in spite of

 < * snip * >

What little I know of contract law suggests a different doctrine: 
contract claims which are illegal (e.g.:  a contract to exchange money
for controlled substances) are not legally enforceable.  I haven't
suggested language saying that a patent claim is invalid, I've suggested
language saying that a patent claim be countered by a copyright one. 
Checks and balances.

Karsten M. Self (
    What part of "Gestalt" don't you understand?

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