Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Wed, 04 Oct 2006 07:36:49 -0700


  Thomas> [The "patent claims suggested by" covenant]

  Stephen> AFAICS, that is almost precisely what GPLv3 section
  Stephen> 11 para 1 says.  That is, you can be sued by Alice
  Stephen> for any claim not embodied in the conveyed work.


Perhaps that is what GPLv3 sec 11 para 1 says or perhaps not but
it certainly is not what my proposal says.

Suppose that Alice patents a string comparison argument with
claims "...in a Jabber router..." and "...in a relational
database..." and she conveys a Jabber router embodying the
invention "...in a Jabber router...".

In my proposal, any skilled programmer is likely to think of
copying the string comparison algorithm to MySQL if they want to
speed MySQL up.  It is easy to do so.  Given the Jabber router,
application of the algorithm to MySQL is obvious.  Therefore,
Alice has covenanted not to assert claims against the use her
invention in the GPL version of MySQL, even if she has not
directly conveyed such a program herself.


  Stephen> The difference is that I want the burden of compiling
  Stephen> libsection11 to fall on the community because it's
  Stephen> useful and consistent with copyright law, while you
  Stephen> want to simply say that any claim practiced in any
  Stephen> GPL software is automatically available to all GPL
  Stephen> software, which may be more consistent with patent
  Stephen> law.

The problem with your approach is that first, programmers may
not, in general, copy Alice's code to libsection11 or, second,
if they have done so, people may not use that GPL library in all
of the usual ways.  That would be a failure of the GPL.

Don't forget that the four freedoms the GPL seeks to protect
don't originate in copyright law, they originate in a moral
analysis that claims to discover a categorical imperative.  The
GPL is successful to the degree it enables a community of people
who use the license to enjoy those four freedoms with respect to
covered code.  Patentees who do not participate in the GPL
community can hamper the GPL's effectiveness.  It is reasonable
to require of patentees who do participate in the GPL community
that they can not use patents to hamper the GPL's effectiveness.



  Stephen> However, Bob still cannot practice others of Alice's
  Stephen> claims without license.

If the other claims are strongly suggeted by materials that
Alice has conveyed under GPL -- they follow from the normal
exercise of GPL rights -- then Bob should be permitted.

-t