Subject: Re: termless copyright and patents
From: "Ben Tilly" <btilly@gmail.com>
Date: Fri, 6 Oct 2006 23:01:15 -0700

On 10/6/06, simo <s@ssimo.org> wrote:
> On Fri, 2006-10-06 at 21:17 -0700, Ben Tilly wrote:
> > > 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.
>
> Sorry, but you are wrong here, in section 0, the GPLv2 clearly refers to
> copyright law, and this is clear in many other references. The GPL is a
> copyright license.

In section 0 it refers to copyright law, but does not *limit* itself
to copyright law.  That is, it applies to a copyrighted document, but
the permissions granted are copying, modification and distribution.
It does not say that it grants you those permissions denied under
copyright law, just that it grants you those permissions.

Incidentally I'll note that Larry Rosen has pointed out in his book
that the GPL is both a copyright license and a potential contract.  He
makes the point that if one has opportunity, it is better to make it
into a contract, and gives a number of reasons for doing so.

> Furthermore, I think that permission to modify does not necessarily
> imply other permissions.

Of course it does not.  Which is why I pointed out that permission to
practice the patent by using the program is not addressed by this
literal argument.  That is, one may be allowed to create, distribute,
and further modify the derivative program that infringes on your
patent, but not be allowed to actually run it.

[...]
> > 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.
>
> I see your point and I would agree with you logically.
> But law is not necessarily logical. I am not saying that you can argue
> about this, only that a copyright license is not a contract or a
> covenant.

True, and you've hit on a big part of the reason that I say that,
while I can argue this, I have no idea whether it is right.  I've also
commented that I suspect that if the GPL is a contract, this argument
may be more likely to fly.

> To make it clear I don't think the text of the license itself implies
> much about the patents claims (and I think this is the reason why Larry
> say he can argue but the text doesn't say anything), I think the
> implicit permission to use patent claims has more to do with the fact
> that you distribute the program. Unfortunately I don't know the correct
> expression in Legalese to express this kind of implicit agreement (I
> know it in Italian not in English), I think Larry mentioned the first
> sale doctrine (exhaustion doctrine ?).

We're in the same boat there.

[...]
> > 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.
>
> I know it seems contradictory, but I think we have to separate copyright
> law from patent law. Again it is arguable, so I would not dismiss this
> point completely, but I am not sure permissions given in the context of
> copyright law are necessarily applicable to other laws.

All that I'm saying is that it is arguable.  I'm not saying it is right.

> Trying with an extreme example: there are laws that restrict what you
> can do. For example you cannot modify and distribute software with the
> intent to cause harm. This may be seen as a restriction on modification,
> but that doesn't mean that nobody can distribute GPLed software because
> of section 7. It is obvious that certain laws take precedence and there
> is no point in arguing on what this license says in those cases.

The example fails.  The GPL makes it clear that the copyright holder
gives permission; it does not say whether anyone else does.  So if the
law says that you can't do what I've permitted you to do, that doesn't
change that I am not barring you from doing 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.
>
> Which is not sufficient, some provisions make sense in light of what is
> admissible by law (either statutory or common law).
> The context is often as important as the license itself.

This I know.  Which is why I am pointing out that I am trying for a
very literal read of the text.  Again, I'm just demonstrating that I
can argue this.  I'm not trying to demonstrate that this argument is
correct.

> Another extreme example: it is a criminal offense to kill someone.
> But if you do it for personal defense than you can be completely
> discharged. Context matters.

Obviously.

[lots of areas of agreement snipped]

Cheers,
Ben