Subject: Re: termless copyright and patents
From: simo <s@ssimo.org>
Date: Fri, 06 Oct 2006 22:24:34 -0400

On Fri, 2006-10-06 at 17:34 -0700, Ben Tilly wrote:
> 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.

I think you can. You are facilitating infringement.

>  (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.)

The patent holder may implicitly give you permission to use the
software, but I don't think you can assume it gives you the permission
to use any claim of the patent, but just the ones embodied in the
program as he distributed it.

> 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?

They have permission under copyright law, that does not say anything
about permission to infringe patents. Of course to be able to
redistribute a GPL program you must at least grant permission to
exercise the claims embedded into the program you are distributing, but
I don't see any reasonable interpretation that forces the patent holder
to give up other claims as well. It is a problem (ie he will be denied
the right to distribute said modification as per GPLv2 section 7) of a
the downstream distributor if he, by changing the program, infringes in
these other patent claims.

> 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".

Oh but you are not, you give full permission on the embodied claims
(this is exactly the implicit patent covenant).
But you are not required to give additional permissions (the other
patent claims).

> 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 no restriction is imposed on the distributed software, as is, I
don't see the point.

> 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.

I think it would be rather difficult to hold such a position in court,
as the act of distributing the software is a clear implicit grant of
usage of your patent (limited to the specific piece of software
distributed).

> 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.

No I don't think so, see above.

> > > > 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.

What companies do you refer to? I know that even some lawyers have had
problems understanding the GPL (but then I've met lawyers that really
had problems understanding a bit too much of copyright law in general
for my taste, and I am _not_ a lawyer).

> 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.

I think this is very far from reality. I respect kernel hackers for
their technical skill with the kernel code, but as to understanding
licenses I think they are the least capable. Law is just outside of
their competence and I honestly think they do not really understand the
GPLv2, I'd not bet a kernel hacker can understand the GPLv3 better than
an average lawyer. They may (or may not) understand the social impact of
the license, but from the legal point of view no way, I am sorry.

IANAL, but I spent a heck of a _lot_ of time studying the GPL and other
licenses with the help of lawyers (the kind that understand the GPL) and
not only from the POV of the US copyright law, but also other countries
copyright laws, and I still don't claim to understand in full all the
legal consequences of such license (I have not studied law after all).
So I don't think a bunch of hackers, no matter how smart and bright can
really understand the legal consequences of such quite special license
like the GPL without spending as much time (and I am sure they did not
as it is not as fun as writing code).

> 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...

Well I don't know what experiences you had. I think the most people in
companies (managers at all) do not understand 1% of the GPL. But that
doesn't mean lawyers do not understand it. They are not just asked to
explain and there is confidence the lawyer knows what is ok or not for
the company. (I never contracted my contract clauses with a manger, I
always did that with a lawyer, and the manager just accepted whatever
the lawyer said was ok for example). For many people law is just that
boring stuff that lawyers are paid to take care of.

Simo.