Subject: Re: New angle on the patent problem
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Wed, 15 Sep 1999 17:08:15 +0900 (JST)

>>>>> "Assaf" == Assaf Arkin <arkin@exoffice.com> writes:

    Assaf> If the license said that a X loses the license to use all
    Assaf> software under this license, if X is writing a bad review
    Assaf> about the software, or is otherwise making negative
    Assaf> comments about it, then a court will look at it in one of
    Assaf> two ways. If the license only applies to some product that
    Assaf> X can live without (e.g. Emacs), then the license is
    Assaf> valid. If the license applies to many products that X
    Assaf> cannot live without (e.g. Linux, Netscape and the TCP/IP
    Assaf> stack), then the license is unconstitutional.

All of the above applies to all patents, which by definition grant
monopolies.

So if you are arguing that the "poison-pill" license will not be
enforced by the courts ("unconstitutional") when the private value of
the so-licensed software is sufficiently high, exactly the same
argument ought to apply to all patents.  Eg, for AIDS drugs.

I don't think it works this way in practice.

    Assaf> Imagine that you are a company investing $10M in a new
    Assaf> patented application (not a bogus patent, a real, hard
    Assaf> earned patent) and someone just reads the patnet
    Assaf> application, writes the code and hides behind an open
    Assaf> source license to give it away to the world. You cannot
    Assaf> even sue them, because by doing so you have to shut down
    Assaf> all your Web and e-mail servers. Does that seem logical?

Yes.  Logic itself has logical axioms and domain-specific axioms.
Here the domain-specific axioms are the laws of the land.  (Very
coarse approximation, of course.)

In any case, it is unlikely that you will have to shutdown Web and
e-mail servers.  The Apache license is unlikely to be covered by the
poison pill clause (too easy to create derivatives without it; I find
it unlikely that people who don't like viral licensing will embrace
the poison-pill clause).  Dunno about sendmail, qmail, smail, and
exim, but I seem to recall that sendmail at least is not covered by a
viral license.

And, of course, you can always use last year's software, which is not
covered by this year's license.

Oh my!  Does this mean that we're going to see OSS developers
intentionally destroying backwards compatibility so that their poison
pill will work better?  :-/

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