Re: Patent clauses in licenses

[Michael Poole <mdpoole@troilus.org>]

(Moved from debian-project because it seems more appropriate here.)

MJ Ray writes:

> On 2004-09-14 19:32:58 +0100 Michael Poole <mdpoole@troilus.org> wrote:
>
> > Both groups list significant numbers licenses as free that terminate
> > on patent litigation: [...]
>
> The OSI lists no licences as "free".

While pedantically true, I claim this is irrelevant on the basis of
the similarity between the Open Source Definition and the DFSG.  The
only significant difference is that different groups interpret them.

To forestall the obvious retort about the OSI being more lax than the
free software community: Debian has (especially in the past few years)
been considerably stricter than *both* the FSF and OSI in what
licenses it accepts.  This has achieved a number of good things, but
it is disingenuous to imply that just because Debian disapproves of a
license, the license is necessarily not acceptable to the rest of the
free software community.

> >>  From the FSF's commentary on the Academic Free License at
> > http://www.fsf.org/licenses/license-list.html:
> >     Another incompatibility comes from its "Mutual termination for
> >     Patent Action" clause. Putting aside the difficult question of
> >     whether this sort of clause is a good idea or a bad one, it is
> >     incompatible with the GPL.
>
> I'm not convinced that they would consider it the same if the licensed
> work is patent-afflicted.

Whose patent would make a difference to the FSF?  As a matter of
equity, I do not think a (non-contributing) user who claims to control
patent rights to a piece of free software should get rights to that
software that they would deny to other users -- and filing a patent
claim alleging that the software infringes a patent is a definite
attempt to deny software freedoms to other users.

> > And on Apache Software License 2.0:
> >     We don't think those patent termination cases are inherently a bad
> >     idea, but nonetheless they are incompatible with the GNU GPL.
>
> The Apache v2.0 is a rather narrower termination than most of the
> others you cite, which I think is probably free.

Loss of patent license means the user cannot use the software.  Loss
of copyright license (at least in the USA) only removes the license of
a user to modify or copy the software further.  I do not see how the
former is narrower than the latter, especially since use of the
program without a patent license from the program's author would be
easily argued to be intentional infringement -- which is liable for
treble damages.

Michael Poole