Subject: RE: Patent-based dual-licensing open source business model
From: <stephen@xemacs.org>
Date: Thu, 14 Sep 2006 14:16:54 +0900

Lawrence Rosen writes:

 > "Patents!" There, I've said it. Should I go to free software jail? 

 > /Larry

Er, that's the whole point.  If the software is free, *you* won't go
to jail for adding IC/IP to it.  Even if you distribute it, you'll be
OK.  That's what software freedom means!  But that's not reciprocal;
we can't add IC/IP to software and distribute it without checking with
our lawyers.

Not even if the software is free.  Eg, IMO (IANAL and I'm aware of
your contrary opinion) the Covenant is insufficient to allow IC/IP to
be incorporated in software received under the GPL v2 and then
redistributed.  The preamble says "any patent must be licensed for
everyone's free use", and as far as I know the FSF continues to
maintain the opinion that that's what the license means.

I hope you're right, and the FSF publically says you are.  I have a
personal interest in this---my pet project is a text processing
application licensed under the GPL v2.  But if they don't, I don't
think I want to pay a lawyer all the way to the Supreme Court to
contest it!  Nor do I think the FSF would overlook it, especially if
IC decided to sue a big player (and there are some very big players
with internal versions of XEmacs deployed) for applying their
unpublished patches to our latest version containing IC/IP.  I think
I'd be in very very big trouble---all three parties suing me from
different directions.

It's great that your client has a patentable idea and you're looking
for ways to encourage development and source publication of software
based on the idea.  The effort you've put into developing a model that
could be extended to other patents is laudable.  Universities, hobby
developers, and researchers will love it.  Developers who have kids to
support but are in sympathy with the goals of free software, too.

But I have a hard time seeing a positive reaction from FS activists.
I don't think the Covenant is about open source software at all; it's
about getting more source into the public view in ways that are also
practically useful.  The condition that the resulting software be open
source is a convenient, but "accidental," formula to indicate the uses
you are licensing.  You're promoting something a lot more restricted
than free software per se, which nonetheless should be evaluated on
its own merits---IMO, substantial merits.

Regards,
Steve