Re: [Richard Stallman <rms@gnu.org>] Re: Debian & BSD concerns
Bruce Sass writes:
> Hmmm, you seem to see "license" and automatically think "copyright".
> ...
No. I just couldn't see any point unless I assumed you were discussing the
interaction of a patent and the copyright on a work that implements it.
> The conflict that could arise if a programmer used a patent algorithm
> that appeared to be "free",...
You mean that the patent owner granted the programmer a license, and the
programmer interpreted it as "free"?
> ...then the patent holder decided to change the license to something that
> was "non-free"...
This makes no sense. A patent owner cannot unilaterally and retroactively
alter a license he has granted.
> If the programmer refused, it could end up in court with the patent
> holder saying, `I revoked the old license and replaced it with a new one,
> but this programmer refuses to acknowledge my right to determine how my
> invention can be used'. The programmer would probably say, `but I have a
> license that lets me use the algorithm'.
And the judge would read the license and decide whether or not it contained
a revocation clause and if so whether or not it had been properly invoked.
Then he would make his ruling. Old law, zillions of precedents. The fact
that the patent is a software patent is irrelevant.
> So, it would be up to the judge to determine if the rights granted by the
> patent are more important than the rights granted by a license issued
> under the authority of the patent.
That sentence makes no sense. The right granted to the patent is,
effectively, the right to grant licenses.
> In one jurisdiction it may be plausible that the patent holder gives up
> all rights as a patent holder by (lets say) GPLing the license.
Attempting to apply the GPL to a patent would be nonsensical.
> In another jurisdiction the most likely outcome may be that the patent
> holder's rights take precedence over the licensee's rights, irregardless
> of any previous license,.,..
Where are you getting this stuff about a conflict of rights? The licensee
has whatever rights the patent holder has granted him.
> ... simply because it is the patent that gives the patent holder the
> right to apply whatever license they want to.
The patent owner doesn't "apply" a license. He grants one. To the
licensee.
> Now, what happens when I wake up some morning and decide to change the
> license that pertains to the use of the algorithm, `give me $10,000 or
> stop using my invention'...
That will depend on whether or not the thing you included in your copyright
license is considered the grant of a license to the public to use the
patent. If it is and contains no revocation clause you won't get your
money.
> On the other hand, if you tried to make the same argument with respect to
> a patent algorithm of mine (and were successful), you would be violating
> my right to determine how my invention can be used...
No, I would merely be asserting that you had granted me a license.
> ...which includes the right to change the terms of the contract that
> allows you to use my idea (the license) as long as nothing in the
> contract prevents it.
There is no such right.
--
John Hasler This posting is in the public domain.
john@dhh.gt.org Do with it what you will.
Dancing Horse Hill Make money from it if you can; I don't mind.
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