Subject: RE: Patent-based dual-licensing open source business model
From: <stephen@xemacs.org>
Date: Thu, 14 Sep 2006 05:08:29 +0900

Lawrence Rosen writes:

  lr> My responses are inline....

  simo> It seem a bit too much to require individuals to publish (it
  simo> means you must set up a website or something and maybe pay for
  simo> the service, communicate with IC etc..) the code for every
  simo> trivial modification they want to do.

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

  lr> Consider the "first sale" (or "exhaustion") doctrine in patent
  lr> law. When you buy any product in commerce, you are allowed to
  lr> repair it if necessary to use it, regardless of the patents.
  lr> (You can't *change* it, but you can *fix* it; you can put new
  lr> sparkplugs in your Chevrolet, but you can't turn it into a
  lr> Cadillac, and you certainly can't start making and selling new
  lr> cars on the model of the one you bought!

But as I read that Covenant, I think simo is right to worry.  Software
does not wear out or even break under load; there *is no equivalent to
changing sparkplugs.*  Rather, what's under discussion here is adding
some trim and chrome wheels to turn a Ford into the equivalent Mercury
model.

Maybe that's still trivial and OK, but that's not clear to this
non-lawyer.

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

From a legal standpoint, of course you're right.  From the point of
view of understanding whether this is a free software license (based
on patent) or not, however, the "bit-for-bit identical" case is a
salient example.

I don't agree that a license that

   (1) allows me to offer a hardware product and a software product
       that runs on the hardware, separately, but

   (2) does not allow me to offer the software copied onto the hard
       drive of the hardware bit-for-bit,

where in both cases the software product includes full machine-
readable source, is a free software license.  I suspect you'll find
few who do agree.

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

That *is* a real benefit to basing a license on a patent, but it
doesn't address the question.  The problem is not the edge cases where
it's not clear whether there's infringement or not.  The problem is
the boundary between the cases that obviously infringe, but you
promise not to assert your rights, and those cases that obviously
infringe, but I'd better watch my butt.  Where is that boundary?  The
Covenant is not yet very clear, to me, anyway.

  lr> Or that purchased hardware preloaded with software means the
  lr> software is "free"?

If the software *is* open source, then it's irrelevant on what medium
it's delivered: CD-ROM, EEPROM, hard drive, or a fully functional and
configured workstation.  A user has the right to copy, modify, and
redistribute it, period (along with access to source).  However, you
do not give me the right to copy it onto a hard drive and redistribute
it, if that hard drive "just happens" to be installed in a workstation.

  lr> can you see how this new model can lead to a new form of
  lr> software freedom based on patent law and not just copyright law?

It's easy to see that it's a new model.

It's difficult to admit it as free software.  Free software
definitions are basically intended to implement "no rights reserved".
Your Covenant, however, is clearly based on "some valuable rights
reserved".  I happen to like your choices as to which rights to
reserve, but I'm reluctant to call the result a free software license.

If exercise of any of the four freedoms is impaired, you're not going
to be able to call it free.  It looks to me like both use and
distribution freedoms are restricted as the Covenant is currently written.

Regards,
Steve