Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Thu, 28 Sep 2006 21:29:50 -0700
Thu, 28 Sep 2006 21:29:50 -0700
You're right that I misunderstood section 11 of GPLv3, Simo,
but the situation doesn't look that much better than what I described.

If a company distributes GPLed code then all of its "essential
patent claims" in that work are publicly available for any use
in which they are embodied in a covered derivative of that work --
which is not terribly limiting.

Moreover, suppose that an infringement is discovered which
can be remedied by substituting a GPLed form of the infringing
component.   Often that will be possible without the infringer
giving up much at all and it won't cost much to do.   Such an
infringement is then arguably "de minimis" and the patent
holder's remedies may be sharply limited.

Holders of defensive portfolios, who distribute lots of GPLed
code, are at interesting risk here: their defense stance is greatly
weakened relative to other firms not distributing lots of GPLed
code.

-t





Thomas Lord wrote:
> I need to (in idle times) think about this for a day or two.   You *might*
> have changed my mind about interpreting GPLv3 but I'm not so sure.
> Lemme sort it out and either concede to you on this sub-thread or not.
>
>
> -t
>
>
> simo wrote:
>> On Mon, 2006-09-25 at 17:00 -0700, Thomas Lord wrote:
>>   
>>> simo wrote: 
>>>     
>>>> On Mon, 2006-09-25 at 13:00 -0700, Thomas Lord wrote:
>>>>
>>>>   
>>>>       
>>>>> For example, IBM may discover that, in shipping Linux systems,
>>>>> they have practiced many of their own patents.   Well, per RMS,
>>>>> those patents would all now be publicly licensed for any purpose
>>>>> whatsoever.
>>>>>     
>>>>>         
>>>> This is plain FUD and bullshit, sorry.
>>>> Read the license, it doesn't say at all what you say.
>>>>   
>>>>       
>>> You refer, I assume, to section 11 of GPLv3 which sounds superficially
>>> like it limits mandatory patent licensing to covered works.
>>>
>>> That section reads, in part:
>>>
>>>     If you convey a covered work, knowingly relying
>>>     on a non-sublicensable patent license that is not generally
>>>     available to all, you must either (1) act to shield downstream
>>>     users against the possible patent infringement claims from 
>>>     which your license protects you, or (2) ensure that anyone can
>>>     copy the Corresponding Source of the covered work, free of charge
>>>     and under the terms of this License, through a publicly available 
>>>     network server or other readily accessible means. 
>>>
>>>
>>> Point (1) is key.
>>>
>>>
>>> Suppose that IBM is distributing the Linux kernel which
>>> practices a patent from Sun to which IBM has a limited
>>> license contingent upon IBM not suing Sun for violation
>>> of certain other patents.
>>>
>>>
>>> You receive a copy of that kernel from IBM.
>>>
>>>
>>> Well, then, practice that patent at will because IBM, not
>>> you, is on the hook.
>>>     
>>
>> non sequitur
>>
>> it is either (1) or (2), IBM can opt for (2)
>>
>> Simo.
>>
>>
>>   
>



You're right that I misunderstood section 11 of GPLv3, Simo,
but the situation doesn't look that much better than what I described.

If a company distributes GPLed code then all of its "essential
patent claims" in that work are publicly available for any use
in which they are embodied in a covered derivative of that work --
which is not terribly limiting.

Moreover, suppose that an infringement is discovered which
can be remedied by substituting a GPLed form of the infringing
component.   Often that will be possible without the infringer
giving up much at all and it won't cost much to do.   Such an
infringement is then arguably "de minimis" and the patent
holder's remedies may be sharply limited.

Holders of defensive portfolios, who distribute lots of GPLed
code, are at interesting risk here: their defense stance is greatly
weakened relative to other firms not distributing lots of GPLed
code.

-t





Thomas Lord wrote:
I need to (in idle times) think about this for a day or two.   You *might*
have changed my mind about interpreting GPLv3 but I'm not so sure.
Lemme sort it out and either concede to you on this sub-thread or not.


-t


simo wrote:
On Mon, 2006-09-25 at 17:00 -0700, Thomas Lord wrote:
  
simo wrote: 
    
On Mon, 2006-09-25 at 13:00 -0700, Thomas Lord wrote:

  
      
For example, IBM may discover that, in shipping Linux systems,
they have practiced many of their own patents.   Well, per RMS,
those patents would all now be publicly licensed for any purpose
whatsoever.
    
        
This is plain FUD and bullshit, sorry.
Read the license, it doesn't say at all what you say.
  
      
You refer, I assume, to section 11 of GPLv3 which sounds superficially
like it limits mandatory patent licensing to covered works.

That section reads, in part:

    If you convey a covered work, knowingly relying
    on a non-sublicensable patent license that is not generally
    available to all, you must either (1) act to shield downstream
    users against the possible patent infringement claims from 
    which your license protects you, or (2) ensure that anyone can
    copy the Corresponding Source of the covered work, free of charge
    and under the terms of this License, through a publicly available 
    network server or other readily accessible means. 


Point (1) is key.


Suppose that IBM is distributing the Linux kernel which
practices a patent from Sun to which IBM has a limited
license contingent upon IBM not suing Sun for violation
of certain other patents.


You receive a copy of that kernel from IBM.


Well, then, practice that patent at will because IBM, not
you, is on the hook.
    

non sequitur

it is either (1) or (2), IBM can opt for (2)

Simo.