Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Sun, 8 Oct 2006 00:19:02 +0900

Ben Tilly writes:

 > 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.

You're right, I think; that's where the doctrine of implicit license
would arise, I suppose.

However, there are a number of complications.  Copyright may be
referred to as "permissive", because the owner has the exclusive and
full right to make copies, a physical act.  And the language reflects
this.  Patent, on the other hand, is "prohibitive": the owner can stop
you from perform a class of concrete actions referred to as practicing
the patent, but cannot absolutely permit any of them, because they
might infringe others' patents.  The language used in a copyright
license[1] thus is inappropriate for use with a patent license.  At
the very least, it's likely to disconcert the judge, I'd think.

So there's inherent ambiguity of how to apply the permission to
practicing patents, especially as the GPLv2 itself says "Activities
other than copying, distribution and modification are not covered by
this License; they are outside its scope."  That surely includes
practicing patents per se; patents are licensed only as required to
perform the acts permitted by the license.

This doesn't contradict anything I remember you saying, but it does
increase the uncertainty about how to interpret things.

 > > 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.

I would guess that granting permission to copy the program, and then
suing for patent infringement, would be considered inducing
infringement, ie, equivalent to fraud (or entrapment by the
government).  Thus the implicit license.

The doctrine of first sale (usual term in copyright) or exhaustion
(patent) simply says that once you've transferred a *copy* of your
copyrighted work or an *object* embodying your patent claims you may
no longer control use of the *copy* or *object*.  You can't copyright
a picture of George Bush, and then sue somebody for painting a red
circle-and-slash over a copy he legitmately owns.  You can't patent a
technology using a wire to conduct electricity, and then prevent
somebody from reproducing that technology by repairing an instance he
legitimately owns by soldering the wire back onto the connector.

Ie, they say nothing about the acts licensed by GPLv2; they refer
entirely to *use* of an instance.



Footnotes: 
[1]  Ie, designed for enforcement under copyright law, I don't mean to
prejudge the implicit patent license(s).