Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Fri, 29 Sep 2006 07:38:34 -0700
Fri, 29 Sep 2006 07:38:34 -0700
simo wrote:
> On Thu, 2006-09-28 at 21:29 -0700, Thomas Lord wrote:
>   
>> 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.
>>     
>
> Again, it is not for "any" use. You cannot change a web server software
> in a space shuttle auto-pilot and still claim it is the same thing.
>
>   

Um, what is to prevent you from doing that?   The covenant made by a GPLv3
distributor licenses the patent for any use covered by the user's 
exercise of
his GPLv3 rights.     If the web server contains a fast, patent protected
lexical analyzer for XML, users certainly are free to modify the web server
to isolate that code and then morph it into a component of a space shuttle.

Brian B. earlier asked a scope question.   What counts as practicing the 
patent
in something like a space shuttle?   Is it just the one GPLed program 
morphed
from the web browser?   Or is it the whole assembly of the shuttle.

The GPLv3 makes Brian B.'s question moot.   The covenant it requires
permits any use of the patent arising from the exercise of GPL rights.




>> 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.
>>     
>
> Naah, remedies are based on the damages done up to no. True perhaps if
> the infringer can use the patent holder GPLed software than it will
> escape future licensing, but if that's the case, then the infirnger, who
> is not stupid, will use that GPLed software from start. 
>   

Sure, they are better off using the GPLed code first and, often, that 
will not
mean that they have to GPL all of their own code if they don't want to.

But supposing they haven't been using GPL, and that problem is trivial to
correct, if the patent holder has been damaged *at all* it isn't by much.


>> 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.
>>     
>
> No, that's wrong again, the patents will not be available to
> competitors, unless they use the patent holder GPLed program.
>   

Which is not much of a restriction.


> In my opinion they cannot escape patent claims even if they convert
> their own competing program to the GPL, because it will not be a
> derivative of the patent holder program.
>   

Right, they must go through the fairly trivial exercise of deriving the code
which embodies the patent from sources which the patent holder has conveyed.
And if they have previously failed to do that in some instance, but the
problem is trivial to correct, the defensive patent isn't worth much.

It's interesting that you should bring this up because it applies to purely
GPLed programs as well.    Suppose that Acme Co. conveys a Linux kernel
embodying one of their patents.    I, on the other hand, do a fresh GPL
implementation of their invention for use in my lisp machine kernel.
If Acme Co. has not themselves conveyed my lisp machine kernel,
then neither may I.


> There is not such thing as endangering the normal use of patents, for
> patents holder.
>
> The only thing patent holders will be banned to do will be to sue
> competitors using the very software they themselves distribute, which is
> a thing you expect also from any proprietary package contract anyway.
>
>   

Such use of the code by competitors -- use which encompasses all of the
copyright permissions of the GPL -- is very open ended and often will
not require the competitor to GPL lots of their own code.



> You don't expect to get sued for patent infringement from the company
> that sold you the infringing software, and this is what the GPLv3
> codify.
>   

It goes further because the company that sold you the software must
also permit you to modify it and distribute modifications, subject only
to the limits of GPL copyright permissions.

-t




simo wrote:
On Thu, 2006-09-28 at 21:29 -0700, Thomas Lord wrote:
  
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.
    

Again, it is not for "any" use. You cannot change a web server software
in a space shuttle auto-pilot and still claim it is the same thing.

  

Um, what is to prevent you from doing that?   The covenant made by a GPLv3
distributor licenses the patent for any use covered by the user's exercise of
his GPLv3 rights.     If the web server contains a fast, patent protected
lexical analyzer for XML, users certainly are free to modify the web server
to isolate that code and then morph it into a component of a space shuttle.

Brian B. earlier asked a scope question.   What counts as practicing the patent
in something like a space shuttle?   Is it just the one GPLed program morphed
from the web browser?   Or is it the whole assembly of the shuttle.

The GPLv3 makes Brian B.'s question moot.   The covenant it requires
permits any use of the patent arising from the exercise of GPL rights.





  
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.
    

Naah, remedies are based on the damages done up to no. True perhaps if
the infringer can use the patent holder GPLed software than it will
escape future licensing, but if that's the case, then the infirnger, who
is not stupid, will use that GPLed software from start. 
  

Sure, they are better off using the GPLed code first and, often, that will not
mean that they have to GPL all of their own code if they don't want to.

But supposing they haven't been using GPL, and that problem is trivial to
correct, if the patent holder has been damaged *at all* it isn't by much.


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.
    

No, that's wrong again, the patents will not be available to
competitors, unless they use the patent holder GPLed program.
  

Which is not much of a restriction.


In my opinion they cannot escape patent claims even if they convert
their own competing program to the GPL, because it will not be a
derivative of the patent holder program.
  

Right, they must go through the fairly trivial exercise of deriving the code
which embodies the patent from sources which the patent holder has conveyed.
And if they have previously failed to do that in some instance, but the
problem is trivial to correct, the defensive patent isn't worth much.

It's interesting that you should bring this up because it applies to purely
GPLed programs as well.    Suppose that Acme Co. conveys a Linux kernel
embodying one of their patents.    I, on the other hand, do a fresh GPL
implementation of their invention for use in my lisp machine kernel.
If Acme Co. has not themselves conveyed my lisp machine kernel,
then neither may I.


There is not such thing as endangering the normal use of patents, for
patents holder.

The only thing patent holders will be banned to do will be to sue
competitors using the very software they themselves distribute, which is
a thing you expect also from any proprietary package contract anyway.

  

Such use of the code by competitors -- use which encompasses all of the
copyright permissions of the GPL -- is very open ended and often will
not require the competitor to GPL lots of their own code.



You don't expect to get sued for patent infringement from the company
that sold you the infringing software, and this is what the GPLv3
codify.
  

It goes further because the company that sold you the software must
also permit you to modify it and distribute modifications, subject only
to the limits of GPL copyright permissions.

-t