Subject: Re: termless copyright and patents
From: "Ben Tilly" <btilly@gmail.com>
Date: Fri, 6 Oct 2006 21:17:08 -0700

On 10/6/06, simo <s@ssimo.org> wrote:
> 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.

I'm not saying that you can't.  I'm saying that I can argue that you can't.

> >  (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.

AFAICS, what you're responding to here has nothing to do with what I said.

> > 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.

Actually the license just says that they have permission.  It doesn't
clarify under what law they have permission.

> > 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).

Well the license says that anyone who follows the procedure has your
permission to make modifications.  So if you say, "No, you can't make
THAT modification because of my patent" then you're imposing a further
restriction that is not in the license.  Which section 6 says you
can't do.

> > 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.

If you say that certain modifications are not allowed, and the license
says that those modifications are permitted, then you are imposing an
additional restriction on the distributed software.

> > 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).

I know nothing about implicit grants of anything.  I'm just reading
the text of the license in the most literal way I can.

> > 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.

I know you don't think so.  I don't know what I think.  But I am just
saying what the argument that I was giving from the literal text says.

[...]
> > 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).

Oh, let's say the ones that believe that they can distribute anything
they want in binary form as long as they link against a specific
interface in the Linux kernel.  And let's just say that I've known
lawyers like that as well.  Most corporate lawyers that I know have
more experience with, say, contract law than copyright law.  Not to
say that they couldn't understand it, but copyrights aren't their
bread and butter and it shows.

> > 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.

It is often the case that competence in one area results in
overconfidence in another.

> 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).

I am not a lawyer either, but I've spent some of that same time.  And
I'm not saying that a bunch of hackers can really understand it.  In
fact I agree that they *don't* really understand it.  I'm just saying
that their level of misunderstanding is closer to being on par with
the misunderstandings that I've seen from companies than what you're
likely to find from the lawyers in committee B.

> > 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.

I'm not saying that lawyers don't understand it.  But a lawyer who
doesn't specialize in copyright law who is asked to review it can't be
expected to get all of the subtle points.  For instance the presence
and scope of a non-obvious implicit patent license would be easy to
overlook.  And the general company may or may not understand that even
if the lawyer does.

Which leads into my point that there could be more controversy over
the explicit patent grant in the GPL v3 than there was about the
implicit grant in the GPL v2 because a lot of companies simply didn't
realize that there was such a grant in the GPL v2.  And your comments
about the competence of the lawyers in committee B is irrelevant to
this point.

Cheers,
Ben