Re: Open Software License v2.1

[Michael Poole <mdpoole@troilus.org>]

Brian Thomas Sniffen writes:

> Glenn Maynard <glenn@zewt.org> writes:
> 
> > 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.  
> 
> But that's where patents differ from copyright -- they have no concept
> of derivative works, only of protected methods.  So if you sue
> claiming that the implementation in Charlie's is bad, you're also
> claiming the implementation in Alice's is bad.  This is suing "the
> Licensor or any licensee" over that implementation.  The suit is
> *motivated* by failure to comply with the license, but it's over
> patent infringement in Alice or Bob's code.

You're mixing your examples in a way unclear to me, especially by
adding a vague "you" to the three-party example you started with.

A) If "you" are Alice and sue Charlie for patent infringement, and he
   has complied with your open patent license, he can use that license
   as a defense.

B) If "you" are Charlie and sue Alice for patent infringement in her
   program, you would lose the rights Alice granted to you in that
   program.  This is the primary case that we are interested in,
   although it no longer resembles the case where Alice or Bob sues
   Charlie for copyright infringement.

C) If "you" are some third party, any licenses between Alice and
   Charlie are irrelevant to your claim that one or both infringe your
   patent.

> > 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).
> 
> But you can't sue for license violation, not of a free license -- all
> you can do is sue for patent infringement.  So he does, in the patent
> case, have to claim infringement of his patent on that method.

Perhaps you should inform IBM that they cannot sue SCO for GPL
violations, as they are currently doing -- or clarify what you mean by
"you can't sue for license violation, not of a free license."  See
also the Netfilter team's recent copyright lawsuit in Germany.

Michael Poole