On Mon, 2004-08-30 at 20:07, Roy Badami wrote:
"Paul" == Paul Iadonisi <pri(_dot_)marid(_at_)iadonisi(_dot_)to> writes:
>> Even if Sender ID is incompatible with the GPL [2] -- and I'm
>> skeptical that it is except under the most extreme
>> interpretations --
Paul> And we have yet to see a convincing legal argument (or
Paul> *any* legal argument) from an attorney posted to this list.
Paul> I'd like to know what Anne Mitchell (on this list) thinks of
Paul> her legal analysis being called extreme by a non-lawyer.
Ok, here's my argument:
Another honest question: Are you an attorney? We can go back and
forth until we are blue in the face, if we really want to, but I was
pretty clearly talking about analyses from attorneys, not armchair
lawyers like ourselves ;-)
Obviously, no lawyer is infallible, but with the tally so far being
three lawyers finding the patent license incompatible, and zero finding
it compatible, one has to wonder if the view that they are compatible
carries any weight any more.
Nevertheless, my response:
(1) Imagine you don't sign the patent license. In that case, the
license clearly has no effect on you. The question is, does the
existence of a patent claim prevent you from distributing under
the GPL anyway.
It is possible to interpret the GPL such that it does, since you
are not in a position to offer rights to redistribute, although
it's not clear (to me) that this is what the GPL intends.
This may even be the correct interpretation of the GPL, however I
call it an 'extreme' position because under that position it is
also unlawful to distribute the Linux kernel, since it seems
likely from recent reparts that there are a substantial number of
patent claims against it. In fact, this is likely to be true of
most non-trivial GPL'd software.
Re-read the preamble and section 7 of the GPL. The phrase that stands
out in section 7 is "court judgement or allegation of infringement" and
the preamble acknowledges the constant threat of software patents.
Beyond that, I'd need to defer to an attorney's opinion, but if I'm
not mistaken -- and this is something I remember Linus Torvalds
acknowledging, or should I say, asserting -- any attorney will tell you
that willful infringement is much more likely to bring about a judgement
against you than innocent infringement. In other words it is unwise for
any developer of software to rummage through the USPTO database, because
if you do it can be said that you got the idea there or discovered your
'invention' was already patented by somebody else and you went ahead and
used that 'invention' in your code knowing full well it was infringing.
Ignorance *is* bliss in this case.
But here we have someone stating that they have IPR claims on a public
mailing list on part of something that is being submitted as a standard
that all the internet's MTAs will presumably need to implement.
Plausible deniability just went out the window, methinks.
(2) Now imagine that you _have_ signed the Sender ID license. The
Sender ID license doesn't require you to place any restrictions on
the recipient of the software, as far as I can see the situation
with GPL compliance is no different to (1)
Incorrect. This one's easy. Just reread section 2.2 of the patent
license. It is clearly non-sublicenseable which makes it quite
obviously incompatible with section 6 of the GPL. I could find other
conflicts, but I believe that is sufficient.
--
-Paul Iadonisi
Senior System Administrator
Red Hat Certified Engineer / Local Linux Lobbyist
Ever see a penguin fly? -- Try Linux.
GPL all the way: Sell services, don't lease secrets