Re: Open Software License v2.1
On Wed, Sep 15, 2004 at 12:01:15AM -0400, Brian Thomas Sniffen wrote:
> Consider a copyright-only case: Alice and Bob each release some
> software under a copyleft, with a clause mentioning that any lawsuit
> claiming copyright infringement on the work or any derivative forfeits
> all right to the original work and any derivative. Alice and Bob each
> use each other's software extensively, though they don't actually like
> each other much at all.
>
> Now Charlie comes along and derives a new work from Alice's and Bob's
> software. He violates the copyleft. They'd each like to sue him for
> copyright infringement, but if either one sues to defend his property
> rights, he loses his rights to the other's software. Is this free?
This isn't claiming that the works of Alice or Bob are infringing
copyright; it's claiming that Charlie is infringing copyright.
Neither Alice nor Bob face license termination for each other's
work for suing Charlie over Charlie's use of those works; they'd
only lose the license to Charlie's derivative work.
Or at least they shouldn't, if this type of license is implemented
properly.
Take a simpler case. Alice writes a program. Bill contributes
somewhat to it--enough to have a copyright claim. John takes the
result, and violates the license. Bill sues John for violating
his part of the copyright. Does Bill lose his license to Alice's
work? No; he's not saying that Alice's work is in violation,
he's saying that John is in violation (through his act of distributing
without eg. offering source).
I'm a little mixed up, though: I'd expect that an action, not a work,
violates a copyright or patent license--by copying in a way that
isn't allowed, etc.--whereas the work itself infringes on a patent
if there's no license at all. I'm not sure, though, and I'm getting
confused just thinking about it ...
> I don't think it is, though I'm not so sure of myself to think that
> reasonable people can't disagree.
>
> But the patent case seems very similar: A and B each develop some
> software and distribute it under a copyleft with an attached patent
> license with a termination clause for any suit against the licensor or
> any licensee claiming patent infringement in the associated code.
> They each use the other's software and patented techniques.
>
> C then distributes an illicit derived work, in such a way that he does
> not violate the copyright license but does violate the patent
> license. Neither A nor B can sue him without losing their rights to
> the other's software. So if the copyright version is non-free, this
> is non-free, right?
I don't agree with the copyright example, so this becomes mostly
irrelevant, but anyway: I like generality, but I don't think I'd
generalize here. I consider software copyright enforcement to be
legitimate, and potentially beneficial. I do not consider any kind
of software patent enforcement to be beneficial, neither to free
software nor anything else. If C is violating patents and not
copyrights, then I really don't care if it's made harder for A and B
to sue him over it. I simply don't consider "right to use software
patents" to be legitimate or worth protecting. Software patents
have no redeeming value.
--
Glenn Maynard
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