Subject: Re: termless copyright and patents
From: "Ben Tilly" <>
Date: Fri, 6 Oct 2006 15:10:06 -0700

On 10/6/06, simo <> wrote:
> On Fri, 2006-10-06 at 09:12 -0700, Thomas Lord wrote:
> > Now, there is ambiguity here.  If you ask "what is the set of *all*
> > claims being covenanted" -- in general there will be more than one way
> > to construct it.  Well, that's a simple matter: the right construction
> > is the one that I, the conveyer, the patentee, deem to be most
> > favorable to me, so long as it is otherwise consistent with the
> > GPLv3d2.   After all, it's my property we're talking about here.
> The set is very clear, it is the set of patent claims embodied in the
> program as conveyed. There is no ambiguity about that, and this is also
> the same of what you get with the implicit patent claim of GPLv2.

We've had at least one competent lawyer say that what you get with the
implicit patent claim of GPLv2 is unclear to him.  Therefore it is
unclear whether it can be compared with anything else, including the
GPL v3.

It may be equivalent with what the FSF _intended_.  But whether a
court would uphold more or less than their intent is an open question.

(This point has been bothering me every time you claim that they are

> GPLv2 and GPLv3 will be the same wrt to patents, only GPLv3 will have it
> explicit to the benefit of clarity and because of potential legal
> differences in other countries that requires it.

It is unclear to me that they are the same, and I do not seem to be
alone in this lack of clarity.  (In fact from the text of the GPL I
can argue that the GPL v2 grants a lot more than was intended.)

> So if GPLv2 didn't cause the balkanization of the FS world, I don't see
> how the GPLv3 can possibly do it.

It may be that lots of companies wouldn't object to the GPL v2's
implicit grant simply because they didn't realize that it was in

> Simo.
> P.S: I've lobbied to add a clarification to section 11 in today
> committee-A conference call, and it is likely that it will be considered
> for addition in d3.