Subject: Re: New angle on the patent problem
From: Assaf Arkin <>
Date: Mon, 20 Sep 1999 16:48:58 -0700

> 1). License for use of Linux specifies that patent infringement action
> against any of a class of software works will trigger the termination
> clause.  The Emacs license cannot terminate the right granted by another
> license to another work -- Jonathan and I hashed this out earlier.  Even
> if the text of the Emacs and Linux licenses is identical, the Emacs
> license pertains to Emacs and the Linux license to Linux.  My goal is a
> license to _a specific work_ which has a termination trigger based on
> actions to _a class of works_.

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
terminated if patent claim is made against the class of software (all
GNU), whether Emacs or other. We'll leave it to the lawyers to figure
out the exact works ;-)

> 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.

> 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.

> an author (or more specifically, copyright holder) has the right to
> control the making of copies of his or her works, subject to certain
> limitations which may be considered sufficiently strong to prevent
> wholesale appropriation of a work as you suggest.  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."

> 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.

> > 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.

> 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.

No legal opinion, I have to take this to a lawyer to get the actual
precedence. But I have enough legal education to know that 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
the explicit work contract. Other example, a work contract can ask for
30 days notice of termination (and have you pay damages if you just
quite), but cannot force the employee to keep working for 30 days.


> --
> Karsten M. Self (
>     What part of "Gestalt" don't you understand?
> SAS for Linux:
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Assaf Arkin                     
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