Andrew Suffield wrote: > On Tue, Sep 14, 2004 at 08:14:40PM -0700, Josh Triplett wrote: > >>Furthermore, if you *sue claiming that the work infringes your patent*, >>I see absolutely no reason why you should have any rights to the work, >>since you are trying to eliminate the rights of others to the work. I >>can understand the objection to terminating the license over unrelated >>lawsuits, but not the objection to termination when you actually sue >>over the software in question. > >>The alternative would be that *no one >>except you* would have rights to the software, which means you have now >>essentially made it your own proprietary software. > > That's a false dilemma; the alternative which will normally occur is > that the software gets the offending feature removed. Patent lawsuits > do not have to be maximally destructive, and your argument only holds > if they are. s/the software/the piece of the software covered by the patent/, then. All parts of a Free work must be Free works individually. No feature should *ever* have to be removed because of a software patent. > This sort of clause says that you can ignore anybody else's patents > and implement anything you wish, and ignore the patents because > invoking them will wreck everybody. No. If the entity suing you is willing to lose the license to your software, they can certainly still sue you, stop distribution of the software (or the offending piece), extract damages, and all the other obnoxious things patent lawsuits can do. The only change is that they will no longer have the rights to your particular piece of software. > I can't see how this could possibly be free, even if it might be > desireable; for it to be free, it would have to still be free after > s/patent/copyright/g (it would still be desireable). No, the same logic applies here. They can still sue you and claim your software violates their copyright; they just can't continue to copy or distribute your software if they do. > I can see a > company like SCO adopting a scorched-earth strategy to eliminate some > project that their sponsors don't like. Again, nothing can stop someone who actually holds a patent/copyright/other-form-of-government-granted-monoply that actually does apply to your work, if they are determined to sue you into oblivion, with the possible exception of you being in the position to sue them in to oblivion as well. I believe the point of these clauses is to put you in a position where you can at least defend yourself, without holding large numbers of software patents yourself. Just as patent cross-licensing doesn't work unless the other party is actually using some of your patents, software patent defense clauses such as this don't work unless the other party is actually using your software. > So it's failed on both counts: > non-free *and* still vulnerable to patent assaults. Whether it is non-free or not is the point in question. As for the other part, I agree that it is not 100% effective at stopping software patents; that does not mean it is a worthless measure. - Josh Triplett
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