Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Thu, 05 Oct 2006 09:34:57 -0700

stephen@xemacs.org wrote:
>  > The problem with your approach is that first, programmers may
>  > not, in general, copy Alice's code to libsection11 or,
>
> In general, they may copy it.  That is precisely what is promised by
> the covenant in section 11.  Modified versions are at some risk,
> because they might infringe claims not embodied in the code conveyed
> by Alice.
>   

A library like your proposed "libsection11" has many uses which
do not arise from the exercise of GPL rights of the program which
Alice conveyed.

You would like "essential patent claims in" a work to include the
cutting and pasting of code into "libsection11" -- but there is no
language in the license that makes that obviously so.   

Alice is only required, by GPLv3 draft 2, to not assert against
infringements arising from the program she conveyed.   So here
is a simple test:   can I throw away libsection11 and use the program
Alice conveyed as a substitute?   No?   Then libsection11 is not,
in my opinion, protected by Alice's covenant.

GPLv3d2 is a train wreck.



> If your proposal were to be enacted, IBM et al could immediately
> freeze their GPLvTL activities that might be covered by the proposal.
> They would create a joint venture, and transfer those claims that they
> were willing to put into GPL software under GPLv3 Section 11 to that
> corporation.  Any work that they do on GPLvTL ("version Tom Lord")
> software would be carefully camouflaged as "for hire".
>   

First, "could" is misleading.  IBM is already promising not to assert a 
set of
listed patents against any open source code, at all.   It's a 
hop-skip-and-a-jump
from there to a "suggested claims" covenant.

Second, in the case you describe, Sec 11 paragraph 2 comes into play 
(and, yes,
that also has bugs in GPLv3d2 but we can fix those, too).




> Now what?  Is it really worth the extra complexity you'll need to deal
> with that?  Do you really want to impose extra costs on people who
> have a responsibility to their stakeholders to maintain the value of
> their assets?  Not to mention to do stuff that the free software
> community will have to object to as sleazy?  (Sure, people object to
> enforcement of patents at all, but that's nothing new.)
>
>   


And this brings us back solidly to reality and *why* so many large companies
are starting to make covenants on their own without waiting for GPLv3.

I think it is *precisely* to protect value for their stakeholders.

There is uncertainty regarding the existence of and contents of the
"implicit covenant" of GPLv2.    It is quite arguable that my "suggested
claims covenant" *is* the implicit GPLv2 covenant (in which case,
GPLv3d2 can be seen as a horrible step backwards).

There is also emerging clarity that there is a limit to what the big
companies with defensive portfolios can actually do about enforcing
those same patents against little guys like open source.   If they go
too far, they certainly will run into anti-trust law.

Better, then, to concede that territory in an orderly way.




> And that assumes that IBM is willing to do any work on GPLvTL stuff at
> all after being stabbed in the back that way.  Note that they can
> easily stick to GPLv2, and if desired add the IC covenant or the GPLv3
> Sec. 11 covenant, for all their current activities.
>
>   

I am inclined to think that GPLv2 actually carries a "suggested claims
covenant" implicitly.    The same is true of many open source licenses.

Distribution under these licenses is, in essence, a declaration that
the distributor expects people to use the source in all the ordinary
open source ways.   The only clear legal path is if they are not, in so
doing, also laying down a patent minefield to catch-up people who
actually then exercise those software freedoms.

-t