Subject: Re: termless copyright and patents
From: "Ben Tilly" <btilly@gmail.com>
Date: Fri, 6 Oct 2006 17:34:48 -0700

On 10/6/06, simo <s@ssimo.org> wrote:
> On Fri, 2006-10-06 at 15:10 -0700, Ben Tilly wrote:
> > On 10/6/06, simo <s@ssimo.org> wrote:
> > > On Fri, 2006-10-06 at 09:12 -0700, Thomas Lord wrote:
[...]
> > 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
> > equivalent.)
>
> Ok, I can give you point here.
> But for FSF what the GPLv3 syas is what was intended to be implicit in
> GPLv2 and what is reasonable to ask (in my opinion).

This accept.

> We can debate if this is appropriate, if it is enough, or if it is not.
> But I don't see any real difference from the protection that the GPLv2
> gives you  and the one embodied in the second draft of the GPLv3.
> And considering that in some countries the implicit patent claim does
> not exist I'd say the GPLv3 is better.

No disagreement here.

> > > 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.)
>
> Can you explain what do you think the GPLv2 grants and why?

I don't know what the GPL v2 grants.  I said I can argue that it
grants a lot more than what was intended, I didn't say that argument
would hold up.

Specifically I can argue that from the GPL v2, the only patent claims
that one may assert against any derivative of a program that you've
released or distributed are for actually running it.  If it infringes
or is modified to infringe on a patent of yours, you may not sue for
copying, distribution or modification.  (For a definition of "may not"
that I am unclear on.  A copyright license is not a contract, and if
the copyright holder gives a ton of permissions then drops them, I'm
unsure whether you have any recourse.)

Here is the argument.  The GPL covers copying, distribution and
modification.  For those items it lays out clear terms which, if
someone follows them, are sufficient to give your permission for them
to do those things.  If they have your permission, then they have your
permission, whether or not your permission was required because of
copyright law or patent law.  If they have your permission, then how
can you sue?

So when are you bound by the terms of the GPL?  Certainly if you
release software you've agreed to it.  (But I'm unclear whether you're
bound by that agreement, see my previous comment.)  But if you
redistribute it, then under item 6 you "may not impose any further
restrictions".  Again it does not say whether you'd be imposing those
restrictions through contract law or patent law, so you're not allowed
to use either to impose those restrictions.

Since the license points out that running the program is outside the
scope of the license, no permission has been granted to run a program
that infringes on a patent of yours, and you're free to sue for that.

By this argument the patent grant is both broader and narrower than
the FSF would like.  It is broader in that future changes that
infringe on your patents have some protection.  It is narrower in that
the fact that you released the software doesn't grant people the right
to run your program.

> > > 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
> > there.
>
> Committee B is full of corporate lawyers, while I don't know the
> proceedings of that committee I'd say they understand the GPLv2 and the
> GPLv3 provisions.

I'd hope that the lawyers in committee B understand the GPL v2 better
than lots of companies do.  Even better than lots of companies who had
a lawyer look at the license.  Therefore their level of understanding
is no indicator of the level of understanding that real companies have
had.

In fact I'd say that a more appropriate group to set your expectations
are the Linux kernel hackers.  They are, if anything, better versed in
the workings of the GPL than your average company is.  Yet to them the
patent grant is something new that many of them object to.  If they
didn't understand it, then I guarantee that corporate America didn't.

Cheers,
Ben

PS Note that until discussions arose over this in relation to the GPL
v3, I'd never realized that there was an implicit patent grant.  And I
believe my knowledge of the GPL v2 to be significantly better than the
knowledge at your average company...