Subject: Re: Patent-based dual-licensing open source business model
From: <stephen@xemacs.org>
Date: Wed, 13 Sep 2006 13:37:52 +0900

On Tue, 2006-09-12 at 07:01 -0700, Lawrence Rosen wrote:
 > I'm interested in the reactions of this group to a new patent-based
 > dual-licensing open source business model adopted by International
 > Characters.
 > 
 > www.rosenlaw.com/IC-Business-Model.pdf. 

The phrase "license approved by the FSF" is insufficiently precise.
The FSF is quite capable of approving and advocating licenses that are
not free software licenses, even by their own definition.  You must
specify "free software license approved by the FSF", or someone could
put the US Constitution in a string as an invariant section of the
program and license it under the FDL ;-).

Note that this Covenant doesn't address the issue of "submarine
patents".  There's no requirement that the patent or the Convenant be
mentioned in the software's documentation.  So somebody who receives
"open source software" exempted under the Covenant with an academic
license will naturally assume he's free to convert it to a proprietary
product, or even with copyleft use a modified version internally, etc.

simo writes:

 > The use of this kind of licensing has always interested me.
 > Your license, it seems to me, make me, personally, impossible to use any
 > software I modify (even just to fix a bug, or to change a preference
 > that make sense only to me) without releasing the source code in the
 > public, and stay legal.

That's exactly what they want.  However, you haven't said what source
code.

I suspect that if "the Software Practicing the Patent" is incorporated
in a library, and you do not modify the library, you're OK.  Unless my
understanding of Larry's book on open source licensing is mistaken or
he's changed his mind since he wrote his book, Larry doesn't believe
in the "linking == deriving" theory.  If you fix a bug, or change a
preference in the *library*, and you care enough about that not to
publish it, then I expect you also care enough to pay licensing fees.

You can probably make this fly even in a strong copyleft environment
simply by creating a brute-force library that doesn't use the patented
technology but performs the same function and exports the same API.
Put both on your web site under an open source license, or certified
mail them to International Characters with an open source license, and
you're done.

It would also be costly for them to get past a claim that your
modifications are "experimental".  "I was planning to post it on my
web site next week, your Honor, really I was.  But it's not ready
yet."

 > It also strangles any little service company that want to try to
 > help their customers by selling pre-configured hardware without
 > making any relevant modification to the software except customizing
 > the configuration.

It's "worse" than that.  Under your interpretation, they can't
distribute pre*installed* hardware at all without risking legal action
by International Characters.  However, if the software in flash ROM or
whatever is bit for bit identical with something available on your
website, then the preinstalled hardware, however complex and
multifunctional, should be considered a distribution medium---not a
combination---it seems to me.

An important question here is whether receipt by *one member* of the
public constitutes distribution "to the public".  If so, as long as
you provide source for your configuration to that customer, you're
clear.  Presumably that's not what they have in mind; if they did, it
would just say "distribution."  But it is not at all obvious to me
what "distribution to the public" means.  The commentary uses the
phrase "public disclosure" instead.  Larry?

 > While I can understand and probably even favor the idea of making
 > royalties against proprietary code, I think that blocking use of
 > internally modified software or software completely public but
 > distributed with hardware violates the very nature of free
 > software.

All you need do is distribute the open source software and hardware as
separate products, as far as I can see, and offer a bundled discount.

 > Thanks for sharing your document, it is a rather interesting topic.

Me, too!