Subject: Re: termless copyright and patents
From: simo <>
Date: Fri, 29 Sep 2006 20:03:49 -0400

On Fri, 2006-09-29 at 09:35 -0700, Thomas Lord wrote:

> The GPL takes all of Mr. Rosen's fun out of leaving the copyright
> business and going to the patent business because it requires patent
> holders to make a covenant expressed in terms of copyright
> permissions.


> Would GPL allow me to cut an XML lexer out of a web server and
> inject it into a database engine?    Clearly that is the intent.   At
> what
> point are related patent claims captured by the GPL covenant and at
> what point not? 

It entirely depends on a patent by patent basis.

> I think you can generalize enough to say this is "very often" the case
> and to observe that large-portfolio patent holders who distribute 
> large quantities of GPLed code will have a very hard time identifying
> when they are invoking this consequence.

Well if they distribute something they can very well take the time to
analyze the consequences, if they are very big they should do it anyway
for the fear of infringing into others patents :-)

> > Oh well you can't say that, go ask MS to release the source code of
> > their OS under the GPL because they infringe on a patent about managing
> > the Virtual Memory ...
> > 
> >   
> No, I mean it the other way.    MS can very often cure the
> infringement
> by releasing much, much less than all of their OS.

Can you make an example? I think I know what you mean, but what I think
does not make sense to me, so I'd like to get an example to see if I
really know what you mean.

> That sort of thing happens all the time.   It's one of the big
> advantages of
> having lots and lots of GPL software.   In my experience (not for
> patents
> per se but just to extract and radically adapt complex components)
> it's one
> of the fastest ways to get code written.

Were it trivial it would have been superfaster ;-)

> Right.   See "Georgia-Pacific".   What *would* have happened if the
> infringer
> was aware of the issue at the start?   How much extra money did they
> make
> by not using the GPL code in the first place?   How much did the
> patentee lose?

There is no clear answer to these questions, in either sense, so I'd not
worry a change in how things go.

> I would say sad, not strange.    This is one reason to like the trend
> towards covenants that are broader than the GPL requires.
> It's sad because it is against the spirit of software freedoms.   I
> can
> not study one free program, learn from it, and write a new free
> program based on what I've learned without risking patent infringement
> even though the patents in question are already embodied in the 
> program I studied.

It doesn't change by an inch the current situation in this regard, all
the software you use could be covered, it won't make any difference.
But will save your *ss if you use GPLed software as you will be sure you
will not be sued for patent infringement at least from the people that
distributes such code. (Still patent trolls may hit, but they tend to
target big players, not little ones).

> Are you really going to be happy with a situation where, say, 
> GNU Awk has a very fast string library but you are prohibited from
> using those same algorithms in GNU Classpath?

No, but this situation is not different from what we have today, that's
why everybody ignores patents and just go on crossing fingers.
The GPL doesn't and can't change anything about patents.

> I can say "often" because I've seen it happen, time and time again.
> Yes, it does depend on the code and on the application.   Yes, there
> are exceptions.    "Often" is quite fair.

Well it depends on the concept of "often" you have probably.

> Permission is what permission says.   If you express permission in
> terms of
> copyright rights.... that's what the permission says.

I think you should reread section 11 at this point.

> Now, yes, perhaps someone will argue that the GPL covenant is very,
> very, weak.   This would be a serious blow to the utility of the GPL.

It is no worse than what we have now with v2, and probably way better.

> Worse than simply not solving "the patent problem", it would
> positively
> invite in people to balkanize the corpus of GPLed code by selectively
> embodying their patents there.

They could be doing that all the time now, and they already do, never
heard of submarine patents in standard protocols?

All of this is a problem of the patent system applied to software, not a
problem of patents applied to the GPL.


> -t