Good morning Matthew,
You raise an interesting point - one certainly worthy of
debate as there is
significant disagreement in the open source community about
the legitimacy
of software patents (or patents in general for that matter),
and what patent
rights an open source licensor should be able to exercise
against its open
source licensees and vice-versa. The most problematic
aspect of the draft
GPL v 3 is its glaring attempt to coerce down-stream
licensors
(sub-licensors) to license their entire patent portfolios,
even if those
patents have nothing to do with the modified version of the
software
licensed by those sub-licensors. I do not intend to debate
the GPL 3.0 here
as I do not know if this is the appropriate forum. However,
my point is
that opinions in the open source community vary widely on
patent issues.
You proposed the following language as a possible solution
to the software
patent issue:
>11. License must not restrict non-software related
rights
>The license must not restrict the licensee's ability to
exercise rights
>unrelated to the field of software, and any copyright
license must not
>automatically terminate upon the exercising of these
rights.
Your thesis is that open source software licenses should not
be used as a
weapon to defend other IP rights. In other words, if
company "A" asserts
its "non-software" patents against company
"B", company A's license to
company B's open source software should not terminate.
I am not sure that your proposed language solves the problem
you pose. Nor
am I certain that your thesis is necessarily sound for all
licenses.
First, what does the phrase "unrelated to the field of
software" mean? Are
the mechanisms upon which software is executed unrelated, or
related to the
field of software? After all, one cannot execute software
in a vacuum.
Second, is company B restricting company A's ability to
exercise rights
"unrelated to the field of software" if the
terms of the open source license
automatically terminate upon A's assertion of patent rights
against B?
Technically, company B cannot prevent company A from
practicing the
inventions disclosed in company A's patents (unless company
B also has
patents "unrelated to the software field" that
relate to company A's
patents). Company B can prevent company A only from using
company B's open
source software.
Third, the language of your proposed Section 11 goes beyond
the patent arena
and would preclude the automatic termination of the license
in the case of
copyright infringement, trademark infringement, trade secret
theft, etc.
Are you proposing that company A should be able to steal
company B's trade
secrets without suffering an automatic termination of the
license? I doubt
this is what you intend.
Fourth, in most circumstances company A is in control of its
technology
plan. Company A chose to use company B's software under an
open source
license either because the software was superior to anything
else in the
market, the price was right, or it did not want to re-create
the wheel.
Company A could instead have chosen to develop its own
solution, to license
a solution from a third party, or to license company B's
solution under a
commercial, royalty-bearing license. Company A also is in a
position to
determine whether it's continued use of company B's
software under an open
source license is more important than asserting its patent
or other IP
rights against B. Company A has the freedom to either forgo
the IP suit, or
to replace company B's open source software before it
initiates a suit
against B. What you are in effect proposing is that company
A should be
able to assert patents, copyrights and any other IP rights
against company B
while continuing to benefit from company B's investment in
the open source
software.
Fifth, you may be thinking of situations in which a fortune
500 or other
large publicly traded firm is company B (given your example
using Apple).
What if company B has 10 employees and revenues of $1M,
while company A is
Microsoft? Microsoft could continue using company B's
software to make
millions while it buries company B in insurmountable legal
expenses...
I would like to discuss this issue in greater depth as there
may be
reasonable restrictions on patent enforcement that a
majority of those in
the open source community can reasonably adopt. I do not
think that the
community as of yet is near any such resolution. Maybe it
never will be,
but a rounded discussion could help to raise the
community's awareness of
the multifaceted nature of the issue...
Thanks for your post!
Dave
David A. Temeles, Jr.
Temeles & Temeles, PC
703.354.7905 x 230 (Tel)
703.354.7905 (Fax)
dtemeles nvalaw.com
1616 Anderson Road, Suite 101
McLean, VA 22102
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-----Original Message-----
From: Matthew Garrett [mailto:mjg59srcf.ucam.org]
Sent: Monday, April 24, 2006 9:03 AM
To: license-discussopensource.org
Subject: Suggested addition to the open-source definition
I can't find any other list mentioned on opensource.org
that seems more
appropriate for this, so:
11. License must not restrict non-software related rights
The license must not restrict the licensee's ability to
exercise rights
unrelated to the field of software, and any copyright
license must not
automatically terminate upon the exercising of these rights.
Rationale
---------
From section 12.1 of the APSL 2.0:
12.1 Termination. This License and the rights granted
hereunder will
terminate:
(c) automatically without notice from Apple if You, at any
time during
the term of this License, commence an action for patent
infringement
against Apple; provided that Apple did not first commence
an action for patent infringement against You in that
instance.
No restriction is made to the field of software. Apple is a
hardware
manufacturer - it is not implausible that they are violating
some number
of non-software patents. However, anyone seeking to protect
their
intellectual property against Apple loses the right to use
APSLed
software.
While many people perceive software patents as having a
chilling effect
on the industry (especially the open source areas of it),
far fewer seem
to believe that the patent system itself is unacceptable.
Open source
licenses should not be used to protect unrelated
intellectual property
or make wider political points, and copyright licenses that
terminate
when the user does something perfectly reasonable and
morally acceptable
should be rejected.
Note that I'm not calling for non-copyright grants to be
irrevokable -
allowing for patent grants to be terminated in response to a
patent suit
seems reasonable. But as it is, using software under the
APSL 2.0
effectively requires a limited patent grant to Apple.
--
Matthew Garrett | mjg59srcf.ucam.org
|