Subject: GPLv3 section 11
From: <stephen@xemacs.org>
Date: Wed, 11 Oct 2006 12:16:37 +0900

Lawrence Rosen writes:

 > I'm not typically a shrinking violet on here, and I'm not afraid
 > this time to speak up.

I hope you haven't taken me to mean you're holding back.  Rather, I
think you have a rather different purpose here from mine or Tom's
(which are quite distinct, IMO).  This means that we're posting at
cross purposes, and this confuses me; I understand why Tom and I
differ, but I don't really understand what you're getting at or why
you don't pick out answerable parts of the discussion---I just don't
have the necessary knowledge, I guess.

 > 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.

Thank you; I really should have done that myself.

Nonetheless, I think my question can be framed entirely in the
abstract.

There is a Big Bag of Claims.  You (the Licensor) reach in a grab a
handful; this is granted to you as your Small Bag of Claims, aka
patent.  Each Claim is discrete.  There is no notion of "combination
of Claims"; each Claim can be tested by itself for whether a
particular actual device infringes, and if you test two Claims, the
result is simply the pair of results for each individually.

You now write an Original Work, and the copyright entirely resides in
you.  You convey the Work to me under a License which grants
permission to manipulate it in various ways, which also contains a
Licensee's Bag of Claim Tickets.  Each Claim Ticket contains the name
of a Claim you covenant not to assert.  I now create a Derivative Work
based on your work, and distribute it.

Something makes you mad at me, and you sue me.  First, you claim that
I have violated the License with respect to the text of the Original
Work (ie, under copyright law).  The Court considers our arguments,
and rules that I have not.

Second, you claim that I have infringed your Small Bag of Claims,
which you pour out on the table.  The Court picks out several and
tells you to put them back in the bag; they are not embodied in my
Derivative Work.  Now I take my Licensee's Bag and pour my Tickets
out.  I start matching them up with your Claims.

Some of my Tickets may not match anything; that doesn't matter.  If I
can tag each of your Claims with a Ticket, then I win.  If there are
untagged Claims left on the table, then you win.

(If you win, then we leave patent law and go to general commercial law
or something like that for calculating damages and determining
appropriate remedies, based on the particular Claims infringed and not
exempted by the covenant.)

My question: is this a usefully accurate model, at least to start with?