Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Fri, 06 Oct 2006 06:09:18 -0700

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

  Stephen> Excuse me?  Absent patent claims, it is your right
  Stephen> under the GPL to cut and paste code into
  Stephen> libsection11.  Section 11 covenants that Alice, who
  Stephen> is conveying the program under the GPL, will not
  Stephen> assert any of the essential claims in that code due
  Stephen> to exercising your rights under the GPL.  [....]


That is not what GPLv3d2 says, at least as I read it.
Here is a plain english version of what I think it says:

  If you convey a program under GPLv3d2, the copyright license
  permits recipients to make copies of the program, to
  convey those copies to other people, to run the program,
  and to sell copies.    When people convey copies, including
  selling copies, they have certain obligations, such as to
  include source code or a suitable offer for source code.

  Exercising those copyright-based permissions may infringe
  upon some patent you have or will later acquire.  When
  you convey a program, you are promising not to sue anyone
  for infringement if that infringement is the result of
  copying, conveying, selling, or running the program that
  you conveyed, consistently with the requirements of this
  license (such as the requirement to provide source code).

  If the permissions you grant in that way would apply to a
  modified version of the program, then your promise extends
  to all recipients who receive such a modified program, derived
  from the one you conveyed, if such receipt is under the terms
  of this license.

If a court is asked to decide "What are these permissions that
Alice gave?" the answer has to be "The narrowest set of
permissions that is consistent with the requirements of the
GPL."

So, again, if Alice is conveying a 'sort' program, she has
no obligation to permit her invention to be converted into
a general purpose library.

(If you want to do forensics on that, look very closely at the
definition of "essential patent claims IN a work" and then again
at section 11.)

All of this does, of course, reinforce the conclusion that
GPLv3d2 is a total disaster that, if widely accepted, will
balkanize the GPL world (in yet another way).



  Tom> Right.  But AFAICS, per section 10, those downstream
  Tom> users have received a license *from Alice*, specifically
  Tom> including that covenant.  Under section 11, then, Alice
  Tom> has covenanted not to assert the *claims* in Alice's
  Tom> Program if they exercise their rights under the GPL in
  Tom> *any* program with a chain of title going back to a
  Tom> Program copy conveyed by Alice.

You are confusing two uses of the word "claim".

In US patent law (and others, I assume) a "claim" is sometimes
the name for a numbered section of a patent in which the
invention is elaborated mainly for the purpose of establishing
the scope of the patent.

You seem to want to believe that if the program Alice conveys
is captured by scope assertions in "claim #2" of her patent,
that therefore she has forgiven all possible infringement under
claim #2 in the conveyed work or any derivitive.

That would be plausible BUT FOR the way that section 0 defines
"essential patent claim".

Another sense of "claim" -- a sense that makes sense in light of
the section 0 definition -- is the sense of "infringement
claim".   An infringement claim is not a numbered statement in
the patent.   An infringement claim is an assertion that a
specific thing or action falls within the scope of the patent.
The critical thing is that section 0 defines "essential patent
claims" in relations to permissions that may be given. 

Here is an illustration:

   Summary:  A chemical compound ... for the treatment of high
     blood pressure ...

   Claim #2: ... as an oral medication ...

Now I find that a certain company is selling the medicine in
the form of a gel capsule.   We negotiate a patent license.
I DO NOT have to sell a license that says:

     In consideration for .... licensee may manufacture
     and sell the compound in any way that falls under the
     scope of claim #2 of my patent.

Indeed, depending on the other claims in the patent, that may
be a ridiculous way to write the license.  RATHER, the license
can say:

     In consideration for .... licensee may manufacture
     the gel capsule product specified in Appendix A.

When I convey a GPLv3d2 program I am, in effect, giving a
blank check for a certain set of licenses.   Which licenses?
Licenses like "everything under claim #2?"  or licenses
more like "the gel capsule specified in Appendix A"?

The latter is more favorable to the patent holder and nothing
in GPLv3d2 seems to contradict it.   'libsection11' is
right out.



  Stephen> Probably the wording of section 11 should be
  Stephen> clarified to cover "derivatives practicing the
  Stephen> essential claims of the conveyed Program."


That's already what it says.  And libsection11 would not be an
example.


  Tom> I am inclined to think that GPLv2 actually carries a
  Tom> "suggested claims covenant" implicitly.

  Stephen> Yeah, just like the 17-year-old boy is inclined to
  Stephen> think his date wants to be groped.  I suspect that
  Stephen> patent-holders tend to think of open source hackers
  Stephen> as a law-abiding lot who would never intentionally
  Stephen> infringe somebody else's IP, and are shocked,
  Stephen> *shocked*, I tell you, at such broad claims of
  Stephen> implicit licensing.<wink>


A patentee can not induce infringement and then turn around
and sue for the infringement they induced.  This is why, for
example, you see some classes of product marked with patent
numbers or marked "patent pending".

Authoring or conveying GPLv2 code is inducing the behavior
commonly known as "open source practices" which includes a
pragmatic use of code borrowing (for other GPLv2 programs) and
re-application of lessons learned.

Clearly, therefore, the author's and conveyers of GPLv2 works
intend these open source practices will take place, at least for
the purpose of producing more GPLv2 code, and therefore they
have seriously weakened patent claims against the results.

That horse has sailed.   Or at least that ship is halfway out
the barn.



  Tom> Distribution under these licenses is, in essence, a declaration that
  Tom> the distributor expects people to use the source in all the ordinary
  Tom> open source ways.

  Stephen> Sure.  But the "ordinary open source ways" don't
  Stephen> include infringing others' IP.  For example, you
  Stephen> cannot mix SSLeay-licensed code with GPL code, even
  Stephen> though both are open source and you might think that
  Stephen> mixing open source code with open source code is what
  Stephen> open source licenses are all about,

That doesn't wash as an analogy.   In fact, it pretty much
proves my point re GPLv2.

Patentees who want their patents "open source" without invoking
the full power of GPLv2 have that option.  They could, for
example, start with BSD-licensed code and add whatever
restrictions they saw fit to protect their patents.   GPLv2, of
course, does not permit those extra restrictions.

-t