Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Sat, 30 Sep 2006 17:57:04 +0900

Thomas Lord writes:

 > 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.

Indeed!  (But not if he's right and the GPLv3 section 11 is compatible
with the International Characters covenant.)

 > 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.

Yes, if there is a clear chain of derivation to the patent-holder,
since the patent-holder's original GPL to his recipients is the one
that you get, and para 1 of section 11 rules.

If not, I would say no.  The patent-holder can come and demand that
you pay up or stop practicing, and under (1) of para 2 you can recover
damages from the distributor, since it doesn't specify what "shield"
means.  Since this is true of *everybody* downstream of the
distributor, I think this is a huge risk.

I have no idea what (2) of para 2 is intended to mean or accomplish.
The only thing I can imagine is assuming that this would require the
patent-holder's permission, then the patent-holder has implicitly
assented to para 1 of section 11.  I think that should be made
explicit.

Between the risk imposed in (1) and the strong tacit claim apparently
made by (2), I'd say that para 2 is basically useless; nobody in their
right mind will deal in software relying on para 2 unless they have
explicit assent to the conditions in para 1 from the patent-holder.
But that's precisely the kind of sublicensable license that para 2
assumes you don't have....

 > At what point are related patent claims captured by the GPL
 > covenant and at what point not?

Never.  Either a claim is practiced by the software, in which case the
GPL gives it away to all (who can swallow the GPL itself, of course),
or it isn't.  (Of course you may have to ask a court.)

 > 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.

Expensive, yes, but not hard in principle.

 > 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?

You're not prohibited; you just have to go through the more or less
annoying exercise of unifying the APIs to the two libraries, making
sure that all manipulations that affect code practicing the patent are
recording in the GNU Awk repo, until you're ready to move the whole
thing lock stock and barrel to GNU Classpath.

But there's a much better way.  See below.

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

The permission in the GPL says the "essential claims in the material
conveyed by [the patent-holder]".  I can't imagine what "essential"
would mean other than to restrict the covenant to the claims that are
embodied in the material.  Claims that are in the same patent but not
essential to the program as conveyed by the righstholder aren't covered.

 > 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.

The GPLv3 covenant is extremely strong, since it basically makes the
claim available to any use of all GPLed code as soon as its
implementation is added to libsection11.  I do not think it is
compatible with the International Characters covenant (unless (2) of
para 2 is completely toothless).

If you need a "better" version of a possibly patented algorthm, you go
and look in the source for libsection11 and derive from that.

What could be easier?  Of course it doesn't solve the problem of
other, "submarine" patents (or even other claims in the patents
practiced by libsection11), but your fear of Balkanization is
completely unwarranted.