Subject: RE: Patent-based dual-licensing open source business model
From: Brian Behlendorf <>
Date: Tue, 19 Sep 2006 15:54:05 -0700 (PDT)

On Fri, 15 Sep 2006, Lawrence Rosen wrote:
>> Lawrence Rosen wrote:
>>> If one of our patent claims reads only on a little open source module 
>>> ("LOSM") in a big blob of open source stuff ("BBOSS"), then our 
>>> covenant doesn't assert rights over that bigger blob. Only 
>>> modifications to LOSM need be disclosed. This is consistent with one 
>>> of our philosophical goals, namely that improvements to patented 
>>> technology should be shared and published. It is also similar, in some 
>>> respects, to Mozilla, except I use the words "module" and "blob" 
>>> instead of "file."
>> Brian Behlendorf responded:
>> The license you proposed doesn't make this clear at all, at least on my
>> read of it.  A clear statement that "only the modified software that
>> embodies the patent inventions need be published publicly" need be made.
> [LR:] We rely on patent law for that. It is patent misuse to use a patent to
> try to control other, unrelated works.

I'm not talking about "unrelated" works, I'm talking about scope within a 
single codebase.  What defines the boundaries of a piece of software, when 
it's not just one staticly linked executable running on bare metal?  There 
is complexity here that "patent law" doesn't address.  Even my "clear 
statement" didn't fix it.  "Smallest portion of code that embodies the 
patent" might be one way of putting it.  I'd put forth that patent law is 
even more subjectively enforced than copyright law, so punting to the 
courts for interpretation is not useful as a potential consumer of the 

> Furthermore, we expressly promise in our Covenant not to sue developers 
> or distributors of open source software for contributory or inducing 
> infringement. Mozilla or Apache or anyone else can do what you suggested 
> in open source software with complete confidence that we won't sue them. 
> What other reassurance do you need about that?

Sure, you might not sue "the developers", but you might sue their 
employers, or their end-users... which still affects the developer.  It 
was specious of Microsoft to say the same thing - providing a non-assert 
on the individual is only a part of the story.  Open Source licenses don't 
make the distinction when it comes to the rights the guarantee and the 
conditions they set.

> [LR:] I didn't intend to suggest it is always easy to determine whether a
> work infringes on a particular patent. But there are a few important reasons
> why it isn't as bad as you suggest:
> 1. A patent claim is required to be precisely stated. If it isn't, it can be
> invalidated. Community Patent Review, a process we support and have joined,
> will help us make sure our patent claims aren't ambiguous. If you think our
> patent is confusing after you read it, then we haven't done our jobs right.
> Don't lump crappy patents in with ours just because we're all patents. (I
> happen to think that my law partner, Michael Einschlag, writes high-quality
> patents.)

If we're trying to evaluate this proposal as a generalized system for 
rewarding innovation within a Free Software Business context, then we have 
to consider its potential when used by actors of all stripes.  In 
comparison, the guarantee of the right to fork in Open Source copyright 
licenses means that we don't have to trust the actors to do the right 
thing - we don't have to trust them to write good code, document it, 
support it, etc.  If the software is important enough, we can always fork. 
So my opinion of this "model" is all about how well it protects the 
Open Source developer against bad patents that just happen to cover the 
same territory they are working within, and bad actors with business 
interests to protect.

The rest of your points can be summarized as "patents are a manageable 
problem".  It's a judgement call and not an objectively measurable thing, 
and I don't think we've seen the worst of what bad patents and bad patent 
owners can do to affect the open source community.  I am very eager to see 
the Community Review process work, but feel we need to reduce the power of 
awards as well; and that as software and biotech and nanotech become more 
interrelated this'll become even more important.  So, I'll disagree on 
the overall message, if you'll forgive me for not addressing each point.

Maybe I am looking at this with a different goal than you.  My hope is 
that we could provide patent holders with a non-evil business model that 
didn't act as a throttle on what makes the Open Source community work.  It 
needs to be a balance

> [LR:] I didn't say "smallest possible portion." I said, if software X
> infringes patent P, then publish X or get a license. You don't have any
> requirement to publish anything that doesn't infringe P, including software
> that surrounds X (links to X, exchanges data with X through an API, is a
> separate part of a program that includes X, etc.), and you can remove X
> (however small or large a piece it is) to avoid infringement.

Put that clearly in the license, then, is all I'm saying.