Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Tue, 10 Oct 2006 11:21:45 +0900

Ben Tilly writes:

 > > The patent number(s) and the claims that I believe are covered by the
 > > covenant or implicit license, will be listed in the permissions notice
 > > for your convenience.
 > 
 > Is this necessarily so?

Yes: the "I" and "you" here really is me and you.  But you couldn't
know that from the way it was written.

More generally, consider 35 USC 287(a) (IIRC), which implies that you
can recover damages for infringement that occurred *before* you file
suit if you have labelled your product with a list of patents used.[1]
I think that it would be a very good idea for the legal department to
add such a notice when vetting the code for IP for that reason.

I'm on record (at least twice in the parent thread) as suggesting that
the IC covenant *explicitly require* that such a notification be added
by implementers and preserved by distributors.  The requirement on
implementers should IMO be worded in such a way that liability of
independent inventors is limited to adding the notice of the patent to
future distributions and making a reasonable attempt to inform past
recipients.  That might require some care.

What's good enough for the IC covenant is probably good enough for the
GPL, too (though the GPL might want to go farther).  Those three
considerations suggest that such labelling would be rather common,
greatly decreasing patent risk of free software use for a large class
of software.

 > In fact I think that part of the objection people have to the
 > patent covenant in the GPL v3 (now that they understand it is
 > there) is the possibility that at a large organization (eg MIT),
 > one group can release software that infringes on a patent issued
 > elsewhere in the organization.  (A patent which MIT may be bound by
 > contract to not offer permission on.)

That's an organizational problem.  Profit from the sword, incur costs
from the sword.  

 > Very well, except that I don't think that patent holders are always
 > going to be so organized about their notices.

*shrug*  Of course not.  But given that free software propagation is
extremely hard to inhibit in a P2P world, they're potentially
incurring very large costs of serving notice to put the genie back in
the bottle.  That's not very comforting to FSBs who might have enough
revenue to justify the costs of serving notice, but it is good for
free software.

Footnotes: 
[1]  The language explicitly says that you cannot recover damages if
the notice is not present, unless the infringement continues after the
infringer is notified of the allegation, and in that case only for
damages incurred after the notification.