Subject: RE: Patent-based dual-licensing open source business model
From: simo <>
Date: Wed, 13 Sep 2006 12:01:12 -0400

On Wed, 2006-09-13 at 08:18 -0700, Lawrence Rosen wrote:

> > 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. 

So let's say a company acquire software that embodies one of the IC
patents, and let's say this software is a public web interface.
Let's say it has some bugs that this company discover and fixes, and
that this company uses this software for their business.

Is this company required to release the fixed sources to the public?
Is this explicit in your license, or just implicit?

> 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.

Err, Stephen is the one that considered the hardware as just "media", not me :-)

> > 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.

Again for how long? Let's say I stop using the covered software in 2007,
for how long I am supposed to be required to answer queries about the
source code?

> 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.

Well it's not actually a problem for me, I can very well imagine that I
can sell the modified version for 1M$ to anyone that cares to ask, and
of course give him the software under an open source license be it the
GPL or any other.
Would that be acceptable to you? Would you qualify that as distribution
to the public?
And if I ask for 10$ instead?

> > >  > 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"? 

Well free software doesn't usually require you to disclose private
modifications, the FSF never approved licenses that required that.
So it depends on what definition of Free Software you follow I suppose.
Generally I stick with the one defined by the FSF.

Software purchased with hardware is a different thing. If it comes with
a free software license it is free at all effects, I do  not see why
bundling software with hardware should change the fact it is free (as in
freedom) or not.

> 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.

Ok but it may end up in being something different than free software.
It's not religion or goodness or evilness, it is just a matter of

> 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?

I can see it, I'm just not sure (need more consideration and careful
thinking) I can call it a "Free Software Business" but it is
definitively a more friendly and open way of doing business than
classical ones.