This is all somewhat hypothetical, because I don't think the technology
works yet, and won't be adopted widely enough for patent issues to be a
concern.
On Tue, 31 Aug 2004, 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:
(1) Imagine you don't sign the patent license. In that case, the
license clearly has no effect on you.
This is completely wrong. You are confusing a license with a contract.
Patent laws in various countries prohibit use of patented technology and
intentional violations have severe penalties, where unintentional
violations have economic penalties and injunction. The details vary
slightly from country to country but the variance is being addressed by
the GATT Treaty and other accords for patent law harmonization. The broad
outlines are pretty much the same throughout the developed world, and like
it or not, it is getting more and more harmonized.
The question is, does the
existence of a patent claim prevent you from distributing under
the GPL anyway.
<LPF President Hat>
Yes. That _could_ be infringement:
http://www4.law.cornell.edu/uscode/35/271.html
There is an exception but it is thin and untested. (US) patent law allows
others to patent enhancements and improvements to existing patents. You
cannot patent hypotheticals, so there is an exception for research. The
original patent holder cannot prevent your patent filing by claiming you
aren't licenced to use the patented technology necessary for your
improvement, nor can they stop your research by injunction and refusal of
a license. They can only prevent you from using it commercially (and
non-commercially). Of course, the improvement holder can prevent them from
using the improvement, so cross-licensing is a likely outcome. So, there
is a little wiggle for research. However, I've spoken to lawyers who
think that you cannot share patent infringing source code with others
__at__all__Period. This is untested so far as I know. The main weakness
is that there is often little argument that you _must_ share code in order
to patent enhancements or perform research. There is some realistic
argument, but certainly limited to research. Unlicenced __use__ is
definitely out.
</LPF President Hat>
Some years ago, I decided to have my company be a US mirror for OpenSSL
(ssleay) before the patents expired. I did have some adverse legal
contact, but no one wanted to litigate the issue and we continued to
operate the mirror. Other factors were that we were licenced to use the
patent, and that our mirroring certainly wasn't commercially beneficial,
and arguably facilitated research. However, unlicenced __Users__ of the
code would have no such defenses. I think it would have been difficult to
resist a subpoena for the download logs, but that never came. Such logs
aren't protected by the ECPA. It was a risky position to take because if
the research exception and other arguments were rejected, we risked being
found to be inducing infringement. This was similar to Kazaa, etc which
were sued for inducing copyright violations. Fortunately, the courts
found their activities to have enough non-infringing purpose that they
weren't found to induce copyright infringement.
What is important to understand is that certain things skate by on what
amounts to technicalities. In general, that isn't the case.
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.
No, this isn't right either. The GPL is a copyright statement and a
permission with conditions. It is not a contract, and it covers only one
aspect of the program. The GPL is orthogonal to the licensing of patents.
A source code license does not equate to patent licence. A good example is
the G.723 codec. The ITU provides a sample implmentation, but this cannot
be used without a licence from the consortium that handles the licensing.
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.
This is wrong. The GPL allows redistribution of source code. You can even
charge money, so long as you provide source code for free, though you are
not required to provide media for free. I am not aware of any patent
claims against Linux in particular, (yet). We are rather expecting bogus
software patents to be problem for free software in general. I have been
advocating a legislative effort to exempt free software from software
patent infringement.
If you mean the SCO V. IBM suit, that concerns copyright, not patents.
Last I heard, it didn't look too good for SCO on the merits, but of
course, we probably won't know the real scoop on the merits until after
the case is over.
--Dean