Subject: Re: termless copyright and patents
From: simo <s@ssimo.org>
Date: Fri, 06 Oct 2006 09:46:00 -0400

On Fri, 2006-10-06 at 06:09 -0700, Thomas Lord wrote:
> 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."

I think your "english translation" is not perfect.
Here it is the d2 text:

	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 essential
	patent claims in the material that the party conveyed,
	against you, arising from your exercise of rights under
	this License.

Modifying a program is one of the rights you can exercise.
The requirement is that you keep the resulting code under the GPL.

So I say that as long as you keep the license you can modify the program
with a large degree of freedom, and the covenant can't sue you.

> 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.

Converting is a modification and is clearly permitted by the GPL, why
shouldn't that be allowed?

This is clear from the following sentence that completes paragraph 1 of
section 11:
	If you convey a covered work, you similarly covenant to
	all recipients, including recipients of works based on
	the covered work, not to assert any of your essential
	patent claims in the covered work.

Note the: "including recipients of works _based_ on the covered work"

Your library is clearly a work based on the covered work, and so it is
permitted.


> (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).

Even if your conclusions were right (I don't think), I don't see how
GPLv3d2 can balkanize anything. Patents are a plague for Free Software
no matter what and even if section 11 were not effective, the situation
is not different from what we have right now. So unless you claim that
the GPLv2 is balkanizing too, I really don't see your point.

>   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.

s/sometimes//
And you can further sub-categorize claims into dependent claims.
Dependent claims are claims that depend on another claim, so that if you
don't infringe the depending claim, the dependent claims do not apply no
matter what they say.

> 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.

Yes

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

Please explain, I don't see anything in the definition in 0 that changes
the meaning of section 11. I'd say on the contrary that it makes very
clear that the conveyor must give a covenant for _all_ patent claims
that apply, even ones acquired after the program have been conveyed !!

> 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. 

"Patent claim" is a very specific legal term, no diubts on its meaning.

> 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.

I really don't understand what "seriously weakened patent claims against
the results" can possibly mean ...

I think you misread and misinterpreted section 11.

Simo.