Subject: RE: Patent-based dual-licensing open source business model
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Wed, 13 Sep 2006 08:18:39 -0700

My responses are inline....

> >  > 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.
> 
> Well the problem is that not only applies to a company, but even to an
> individual that made a trivial change for his own private use. It seem a
> bit too much to require individuals to publish (it means you must set up
> a website or something and maybe pay for the service, communicate with
> IC etc..) the code for every trivial modification they want to do.

Not only isn't that what we want, but that also isn't what the Covenant or
patent law require.

Consider the "first sale" (or "exhaustion") doctrine in patent law. When you
buy any product in commerce, you are allowed to repair it if necessary to
use it, regardless of the patents. (You can't *change* it, but you can *fix*
it; you can put new sparkplugs in your Chevrolet, but you can't turn it into
a Cadillac, and you certainly can't start making and selling new cars on the
model of the one you bought! I note that the patent model has allowed the
automobile service industry to thrive despite the huge numbers of automobile
patents. Fortunately, nobody copyrights cars and distributes them under the
GPL.) Not every "trivial modification" must be published. Furthermore, we
hope that our permission for "experimentation, research and teaching" will
reassure individuals that IC has no interest whatsoever in pursuing
individuals or companies that do these minor things. 

> > 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.
> 
> Patent law is not copyright law, it cover this situation, and IC made it
> clear that if the "medium" is actually hardware (computer+memory) then
> you need a license.

Stephen is right. We consider this hardware. If software is preinstalled on
hardware, then it is a combination. The issue is not whether it is "bit for
bit identical" (that's a copyright issue) but whether the product embodies
our patent claims. 

For us, we're glad to be out of the business of worrying whether a bug fix
is a derivative work. Although the patent law may seem complicated, it is a
well-understood process to lay a patent and a product on the table and
determine whether the product infringes. Meanwhile, we've been arguing about
derivative works for years and still don't have a good answer.

> > 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?
> 
> Distribution to the public has very clear meaning. Put the software in a
> place where anybody can reach it.
> 
> The real problem is that it doesn't say for how long you have to keep it
> public, and at which conditions, Larry?
> 
> Can I ask a fee for distributing the source code? :-P

The phrase "distributed to the public" is intended to prevent the situation
where Company A gives the code to Company B in a private arrangement between
them and then doesn't disclose the source code. To avoid an infringement
claim, Company A or Company B would have to make the code available to the
public (for download, or upon request) under open source terms, regardless
of whether the public wants it or takes it. The easy way to resolve such
issues is, before IC sues someone for patent infringement, we should ask for
a copy of the source code; if we get it, no lawsuit. That's the polite way
that FSF handles potential copyright infringement issues, and we think that
such politeness is a good model to follow.

As to charging fees, if you think that's a problem we can easily fix our
wording. However, we require that the software be made available under an
approved free or open source license, and it seems to me that should suffice
to take care of this problem.

> >  > 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.

How so? Since when does the "very nature of free software" require that
secret modifications made for commercial use be called "free"? Or that
purchased hardware preloaded with software means the software is "free"? 
Is that religious doctrine somewhere? Let me put it this bluntly: An open
source license (such as Apache) may allow secret commercial modifications
but our Covenant does not. Our Covenant controls our patents. That is on
purpose. That is consistent with *our* broad philosophical goals regarding
the sharing of knowledge so that everyone can benefit from improvements to
patented technology.

And, to get back to my original post, this is the basis for a *business
model* that supports and sustains a free software business. Religious
objections aside, can you see how this new model can lead to a new form of
software freedom based on patent law and not just copyright law?

/Larry