Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Mon, 02 Oct 2006 09:53:32 -0700

  Stephen> The only doubt I have is about your definition of
  Stephen> "Balkanization".  If you mean that each claim splits
  Stephen> the GPL world into two parts, and that the partition
  Stephen> will be different for claims implemented in different
  Stephen> APIs, then I agree with you.

That is what I mean. 



  Stephen> There will be a cost of determining whether a
  Stephen> particular API is available to your application,
  Stephen> [....]


Any assessment of the economic and technical costs of the GPLv3
rules is, at this point, purely speculation. 

There are simpler questions that we should not need to speculate
about.   Here is an example:

        A patentee, Alice, conveys a GPL program, Prog1,
        whose source consists of files foo.c and bar.c.

        A hacker, Bob, is working on Prog2.  Initially,
        Prog2 does not infringe on any of Alice's patents.

        Prog2 contains a file, zap.c, whose external interface
        is identical to that of bar.c.  Indeed, if Bob replaces
        zap.c with bar.c, copied from Prog1, then Prog2 runs
        three times faster.

        Bob makes such a replacement and conveys NewProg2,
        a modified version of Prog2 that contains bar.c
        instead of zap.c.

        Question: under any circumstances whatsoever,
        can Alice sue Bob, users of NewProg2, or sellers
        of NewProg2 for violating a patent of hers?

If the answer to that question is "yes", then very clearly the
GPL has failed to protect Stallman's freedom's 0, 2, and 3
(copying, modification, sharing of modifications).  The GPL had
double failed by permitting Alice to release Prog1 which carried
these extra restrictions.

A related question would ask:  suppose Bob merely studies
Alice's program and uses techniques found there?  What then?

The examples in the questions obviously stand at the top of a
slippery slope.  For example, if bar.c contains a string
comparison routine and, instead of just re-using the file, Bob
cuts and pastes individual characters to transform it into a
memory allocator, and the memory allocator happens to infringe a
patent of Alice's that Prog1 doesn't even come close to
infringing, then it would be odd to say that Alice's
infringement suit indicates a failure of the GPL.

I honestly can't tell where on that slope the GPL is.  It sounds
like some people believe that Bob can be sued.  I've suggested
the reading of "exercise of your Rights under this license" that
implies Bob can't be sued.

Perhaps it would be clearer to say:

  Definitions:

    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.

    A party's "patent claims suggested" by a specific work are  |
    all essential patent claims that might arise, in any work,  |
    from the skilled application of teachings in the specific   |
    work, by any techniques enabled by the rights conveyed      |
    under this License, plus all essential patent claims in     |
    the specific work.                                          |


  Section 11:

    You receive the Program with a covenant from each author and
    conveyor of the Program, and of any material, conveyed under
    this License, on which the Program is based, that the
    covenanting party will not assert (or cause others to
    assert) any of the party's

    patent claims suggested by the material the party conveyed   |

    arising from your exercise of rights under this License.  If

    you convey a covered work, you covenant to the public,       |
    not to assert any of your suggested patent claims in any     |
    work covered by this License.                                |
   


-t