Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Sat, 30 Sep 2006 10:24:57 -0700


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

As Simo points out, sections 11 and 12 interact in interesting
ways.  

By section 11, a patentee who conveyed some ancestor of the
program you received has covenanted that they:

  "[...] will not assert (or cause others to assert) any of the
   party's essential patent claims in the material that the
   party conveyed, against you, arising from your exercise of
   rights under this License."

Let's suppose that Mr. Rosen is right that "you can't change
your Chevy into a Cadillac".   His reading is arguably supported
by the definition of essential patent rights and its usage in
section 11:

    A party's "essential patent claims" in a work are all patent
    claims that the party can give permission to practice,
    whether already acquired or to be acquired, that would be
    infringed by making, using, or selling the work.

An example, under Mr. Rosen's reading:  The company Global Runes
has a patent on a Unicode string comparison algorithm, that
algorithm used to route Jabber messages, that algorithm tweaked
for field comparisons in a database, and that algorithm combined
with hardware to create a utility for routing Jabber messages.

Global Runes distributes a software-only embodiment of the
algorithm in the form of a Jabber router.

If everything is hunky dory under the GPL and Mr. Rosen is
right, then balkanization results.  For example, GPL code can
not be copied from the Jabber router to the GPL version of
MySQL.  Additionally, should Debian add the Jabber router to
their packages, people would not be free to sell boxes with
Debian pre-loaded.  This outcome is clearly unintended by the
GPL and, so, if a more favorable reading is similarly available,
that more favorable reading should prevail.

If everything is hunky dory under the GPL but Mr. Rosen is
wrong, then "arising from your exercise of rights under this
License" includes modifying GPL code in the usual way -- so the
rights to to the database claim were given away in the Jabber
client as were the rights to combine with hardware.  This is
clearly not the reading intended by GR which means, minimally,
that their rights to convey under the GPL are terminated.
Perhaps they invited a self-inducement defense against
infringement;  perhaps there are possible damage claims against
them depending on the circumstances.

If things simply aren't hunky dory under the GPL -- the Global
Runes ("GR") covenant is insufficient -- then GR again had no
right to distribute the GPL program in the first place.


The only path through this thicket, the path where GR has
clearly not violated the GPL and/or induced infringement,
is if they convenanted that:

  1) anyone may modify the program to embody any current
     or future GR patent

  2) GR grants permission to make, use, and sell all of those
     modified versions for any purpose whatsoever subject
     only to the terms of the GPL.


I'm not even convinced that it stops there:

  "[...] will not assert (or cause others to assert) any of the
   party's essential patent claims in the material that the
   party conveyed [....] arising from your exercise of
   rights under this License."

What if GR conveyed an *unmodified* Jabber router -- one that
doesn't yet embody their patent.  Your rights under the GPL
include making and distributing modified versions.  Well,
either:

  a) GR illegally conveyed the unmodified with an extra
     restriction, that modifications may not include the
     GR patent

  or

  b) GR gave permission to make the modification, embodying
     their patent


I think I understand Mr. Rosen to be warming up to a different
battle.   I *think* he wants to say "GPL is a copyright license
and therefore it says nothing at all about, for example,
combining this software with hardware.   It can not govern
rights that properly belong to patent law."   I can see the
dramatic presentation now:

    Your honor, here's this box -- a "network appliance".

    <thud>

    We all know that copyright doesn't govern boxes.

    Here's a patent.

    <plunk>

    The case before us asks only if *this*

    <points to patent>

    cover *that*

    <points to box>



The problem is, the GPL does not *have* to claim governance over
patent law.  Instead, in a kind of quid pro quo, it says that
"You, Mr. Patentee, have no rights to convey a covered work
unless, in exchange, you give these patent rights because it is
the intention and belief of all contributing authors to apply
this license to code that is free in that sense."

The defendent can counter-argue:

    Your honor, *this*

    <points to patent>

    absolutely does cover *that*

    <points to box>

    and our permission to make and sell such a box was given
    when plaintiff conveyed *this*

    <drops a CD-R on the table>

    <plink>





 >  > 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.

Which reading are you using?  Am I free to move the code from
GNU Awk to libsection11 without additional permissions from the
patentee who conveyed GNU Awk to me?  If not: balkanization.
If so: the "leaky claims" issue.


 > I do not think it is compatible with the International
 > Characters covenant (unless (2) of para 2 is completely
 > toothless).

Agreed.


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

Does every patentee represented in libsection11 have to, at some
time, convey libsection11?


 > What could be easier? 

Something that is clearer :-)


 > 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.

I hope I've succeeded in giving you some doubt about that.

-t