Subject: Re: termless copyright and patents
From: "Ben Tilly" <btilly@gmail.com>
Date: Tue, 3 Oct 2006 15:14:42 -0700

On 10/3/06, stephen@xemacs.org <stephen@xemacs.org> wrote:
> Ben Tilly writes:
>
>  > Consider the following argument.  Section 6 says Alice cannot impose
>  > further restrictions on the recipients' exercise of the rights granted
>  > herein.  One of the rights granted herein is the right to make
>  > modifications as long as section 2 is satisfied.  But if Alice sues
>  > she is saying, "You may make any modifications you wish as long as you
>  > don't wind up violating one of my other patents."  Therefore she is
>  > restricting the freedom guaranteed in section 2.
>  >
>  > It would be interesting to see this argument go to court.  I have no
>  > idea whether it would hold up, or what the consequences would be if it
>  > did.
>
> I'd not be surprised if it got summarily dismissed.  Here's why.
>
> What is a copyright license?  Permission to copy *existing text*.  It
> does not apply in any way to original text, it can neither restrict
> nor grant permission for "creation" of original text.  The right
> granted by the right to modify is the right to *use this text* in
> combination with new text, possibly after deleting from this text.
> *No rights are granted concerning the new text*, because they don't
> need to be: a license can't restrict your behavior regarding new text
> in any way in the first place.

Um, copyright law grants copyright owners more rights than just
control over copying.  Therefore copyright licenses deal with more
than just whether you can copy the work.  In particular copyright law
restricts your right to modify copyrighted works, and section 2 of the
GPL grants permission for this.

You're right that a copyright does not restrict your right to create
original works, and you're further right that a copyright license does
not grant you the right to create original works.  However I'm not
talking about that.  I'm talking about creating *modified* works,
which copyright law restricts and copyright licenses may grant.  In
particular section 2 of the GPL v2 says what you have to do to be
allowed to create derivative works, copy, and distribute them.

The question then becomes, if through the GPL you've explicitly
granted permission to create a modified work, do you have the right to
apply patent law and retroactively take away the permission that was
granted?

> Thus, any covenant in the license will only apply to *text obtained
> by copying from the work*.  Since an implementation of a claim not
> embodied in the work a fortiori cannot be copied from the work,
> regulating such implementation is outside of the scope of a copyright
> license, including the covenants.

See my comment about modifications.  If I take your work and modify it
creating a work based on yours, the resulting work is subject to your
copyright and is subject to your copyright license.  Including the
covenants.

If I create a work that is not based on yours, then copyright doesn't
apply and the copyright license can have no possible effect.

> Of course you could write a separate covenant that *explicitly* grants
> broader rights, eg,
>
>     The conveyor of this Software covenants that he will ensure that
>     none of his patents, currently owned, or granted or acquired in
>     the future, will ever be enforced by him or anybody else under any
>     circumstances.

That's a nice covenant, if only we could get Microsoft, IBM, etc to
agree to it! :-)

> But I think the natural interpretation under copyright law is that
> unless very explicitly stated otherwise, this kind of covenant is to
> refrain from use of patents to interfere with the rights granted by
> the copyright license.  Ie, to copy (and perhaps modify) specific text
> which implements a patent claim, and thus the covenant only applies to
> that claim.

But the right to create modified works, and then to copy and
distribute them, IS granted by the copyright license!  You may need
additional permissions to create those works, but you have permission
from the author (or, thanks to section 6, any of your upstream
distributers) to do so for their part.

> Of course in the case of a license which is a contract, anything goes
> (but get it in writing! :)

As Larry has pointed out, the GPL can be a contract.  I would be
unsurprised if the result of the argument depended on whether it was
treated as a copyright license or a contract.  But I do not know
enough of the law to be able to say why it would matter, and I suspect
that I don't know enough to recognize the correct explanation if I was
shown it.

> IANAL, this is not legal advice, and I don't even recall reading it in
> Larry Rosen's book (although it might be there).  Nevertheless, I
> think I finally "got it". :-)

I think it isn't correct.  Then again I'm not a lawyer.  And the real
lawyer present has already stated his position, which is, "I can
guess, and as an attorney I can argue. But I can't point to words
which state the intention of the parties..."

Cheers,
Ben