Subject: GPLv3 section 11
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 10 Oct 2006 16:25:06 -0700

This email to FSB list, with BCC to Committee-A.

Larry Rosen wrote:
>  > I hope the licensors of the (GPL-licensed?) software speak up. It  
> > depends entirely upon them, since they own all relevant copyrights  
> > and patent claims, correct?  If not, I hope the relevant patent  > 
> owners speak up here about the language of their patent licenses.

Stephen Turnbull responded:
> Larry, you are under no obligation to answer us at all, and I 
> appreciate that you are doing the best you can to teach us without 
> saying things that are misleading or false in the light of your 
> knowledge of the law and legal proceedings.
> 
> Nevertheless, I must warn you that in this thread your comment is 
> likely to be disastrously misinterpreted because specific language in 
> licences is being discussed.  Among others, we're talking about the
> GPLv3d2 section 11.  This is a template license; there *are no owners* 
> to speak up.
>
<snip>
> Even if you are unable to discuss the concrete issues raised in the 
> sequel, I hope you will clarify that it's lack of time or interest, or 
> a fixable ambiguity in the particular language, that is the issue, not 
> that it's in principle impossible to get a pretty good idea of the 
> meaning of a specific template license.


I'm not typically a shrinking violet on here, and I'm not afraid this time
to speak up. However, I suggest that each topic we discuss be in its own
appropriate thread rather than lumped in with "A Primer on Infringing
Patents in Software." I've changed the topic on this email to reflect the
questions you're actually asking below.

I have commented about GPLv3 in Committee A. That is where most of your
specific comments and questions probably belong. But since most of the
participants on this FSB list aren't actually on Committee A, and because
you are seeking clarity through group discussion, it makes sense to also
discuss it here. 

The FSF is the owner of lots of GPL code. I'd like to learn their
interpretation of their own license rather than just state my own
interpretation. I want to understand their views of the very complex ways
that software patents affect FOSS. Furthermore, GPLv3 is still in draft form
and is likely to change, particularly in its patent provisions; my public
comments on it may be wrong for the license as it finally emerges. I'm
seriously waiting for GPL licensors to comment. And I'm not the only lawyer
around here trying to understand that complicated new license.

I've made it obvious on this list and elsewhere my concern that GPLv3's
current patent provisions are ambiguous in some respects. Your email below
reflects your own uncertainty about what that license means. I'm not
surprised at your questions; I share some of them. That's why I consider it
best that folks who actually have software to license under the GPL speak up
about what they think their license means for their patent portfolios.

I've also said that various interpretations on this FSB list of the patent
provisions of the GPL and other FOSS licenses and covenants have been
misleading, partly because some of the discussants here haven't yet fully
understood the complexity of patent law as it relates to copyrighted
software. That's why Michael Einschlag and I wrote "A Primer on Infringing
Patents in Software" and published it here last weekend. [1] We purposely
didn't focus on GPLv3 because that's someone else's particular license to
solve the problem of patents as they see it. But we did describe the legal
situation of copyrighted software under patent law, so that others can
interpret those licenses in light of patent reality.

Most people here recognize that I am not a big fan of the GPL (neither GPLv2
nor the current draft GPLv3) because of various provisions including but
going well beyond its patent sections, and so I'm probably not the right one
to try to interpret their draft license to the FSB list. My OSL/AFL 3.0
licenses and the IC Covenant take somewhat different approaches to support
FOSS in ways that I believe can be far less contentious and far more
effective than the GPL. I'd rather talk about that, quite frankly, than
GPLv3, but most here have already decided that the GPL is the important
topic of the day. So I choose not to intervene with my own desired topics
until people are ready.

At an appropriate time I may comment on this more fully, but I don't think
it is helpful now to anyone for me to make public interpretations of someone
else's draft license under entirely hypothetical fact scenarios on this
list.

/Larry Rosen

BCC: Committee-A

[1] http://rosenlaw.com/Infringing-Patents-in-Computer-Software.pdf    


> -----Original Message-----
> From: stephen@xemacs.org [mailto:stephen@xemacs.org]
> Sent: Monday, October 09, 2006 10:03 PM
> To: lrosen@rosenlaw.com
> Cc: 'Free Software for Business'; mbeinschlag@rosenlaw.com
> Subject: RE: A Primer on Infringing Patents in Software
> 
> Lawrence Rosen writes:
> >  > > > I hope a real lawyer will speak up,
>  > >
>  > > Me too.
>  >
>  > Me too.
> 
> *wince*
> 
>  > I hope the licensors of the (GPL-licensed?) software speak up. It  
> > depends entirely upon them, since they own all relevant copyrights  
> > and patent claims, correct?  If not, I hope the relevant patent  > 
> owners speak up here about the language of their patent licenses.
> 
> Larry, you are under no obligation to answer us at all, and I 
> appreciate that you are doing the best you can to teach us without 
> saying things that are misleading or false in the light of your 
> knowledge of the law and legal proceedings.
> 
> Nevertheless, I must warn you that in this thread your comment is 
> likely to be disastrously misinterpreted because specific language in 
> licences is being discussed.  Among others, we're talking about the
> GPLv3d2 section 11.  This is a template license; there *are no owners* 
> to speak up.
> 
> Taken in that context, your comment has implications that I don't like 
> at all, namely that template licenses are useless to licensees (they 
> need to ask the licensor what it means, and they'd best "get it in 
> writing"!), and that the scope of license granted by given language is 
> inherently uncertain (ie, not a defect of specific language)---which 
> is the kind of defect of copyright that you claim is not present in 
> patent.
> 
> Even if you are unable to discuss the concrete issues raised in the 
> sequel, I hope you will clarify that it's lack of time or interest, or 
> a fixable ambiguity in the particular language, that is the issue, not 
> that it's in principle impossible to get a pretty good idea of the 
> meaning of a specific template license.
> 
> 				 ****
> 
> Let's ignore the GPLv2, and restrict attention to the GPLv3d2 section
> 11 paragraph 1, which I reproduce here for convenience of reference.
> (I omit the second sentence, which is a reciprocality condition, and 
> AFAICS doesn't further clarify the nature of the covenant.)
> 
>     You receive the Program with a covenant from each author and
>     conveyor of the Program, and of any material, conveyed under this
>     License, on which the Program is based, that the covenanting party
>     will not assert (or cause others to assert) any of the party's
>     essential patent claims in the material that the party conveyed,
>     against you, arising from your exercise of rights under this
>     License.[1]
> 
> To clarify the issue of the ownership of relevant IP, let's assume the 
> IP in the program is entirely owned by the collection of covenanting 
> parties.
> 
> Now, surely "will not assert", "essential patent claims", and "arising 
> from your exercise of rights" have well-defined meaning in law?
> 
> For example, AIUI, with respect to "patent claim" Tom has argued that 
> when a device which is claimed as "making a computation involving a 
> prime number contained in a register" is actually implemented in the 
> conveyed software using a 16-bit register, the covenant above is 
> restricted to implementations using 16-bit registers.
> 
> My counter-argument is that if the patentee wants the covenant of 
> section 11 to do that kind of thing, they had better claim
> 
>     (1) a device performing a computation involving a prime number
>         contained in a register of the device
> 
>     (2) the device of (1) where the register is no more than 16 bits
>         in size
> 
>     (3) the device of (1) where the register is between 17 and 1024
>         bits in size, inclusive
> 
>     (4) the device of (1) where the register is greater than 1024 bits
>         in size.
> 
>     where a "register" is defined to be a specified store which can
>     contain a range of integers whose representation requires at most
>     a number of bits that is fixed when the device is instantiated.
> 
> Ie, (3) and (4) do not "read on the device" (is that correct
> phrasing?) conveyed in Tom's story and thus are not included in the 
> "bag of claims" covered by the covenant.
> 
> Then there are two questions here.  (a) Am I correct that Tom's 
> argument is false when only claim (1) is patented?  (b) Under what 
> conditions can patent-holders legitimately split up their claims as I 
> proposed?
> 
> In the example, doing computations with a 16-bit register and with a 
> 1024-bit register are conceptually the same.  All the technical issues 
> are the same.  For example, IIRC using the GMP package you can set the 
> size of a fixed-precision integer (ie, a "register" as defined above) 
> to be any number of bytes you like; you are restricted only by the 
> amount of memory you have available.  I would contend that all of (2), 
> (3), and (4) are already in (1), there is nothing unobvious or novel 
> about them.[2]
> 
> Note that I am not denying that the rights holder can write a license 
> that says "you may embody claim (1) in your products as long as the 
> register is no larger than 16 bits".[3]  I am saying that (c) the 
> covenant's language refers to the claims actually enumerated in the 
> patent, and therefore the size of the register in the conveyed program 
> is irrelevant if the patent is restricted to claim (1).
> 
> And (d) I believe the patent would be restricted to claim (1), because 
> claims (2) to (4) are not patentable given current technology for 
> manipulating registers.
> 
> Do you mean to say that "all of (a) - (d) would have to be decided in 
> court on a case by case basis; if you want my advice, that would be a 
> billable service"?  That is of course an acceptable---and useful--- 
> answer.  However, it completely vitiates the claim that you have made 
> that patent law is easier to apply than copyright law.
> 
> Footnotes:
> [1]  "Essential patent claims" is defined in Section 0 as
> 
>     A party's "essential patent claims" in a work are all patent
>     claims that the party can give permission to practice, whether
>     already acquired or to be acquired, that would be infringed by
>     making, using, or selling the work.
> 
> [2]  Of course we may be getting into the sizes where "efficient 
> multiplication" algorithms become relevant, but I think we can 
> stipulate that those are not in the scope of this patent.
> 
> [3]  IIRC, RSAREF actually was licensed or had a covenant under those 
> terms, except that the number of key bits was 128.