Re: Open Software License v2.1

[Michael Poole <mdpoole@troilus.org>]

Brian Thomas Sniffen writes:

> Henning Makholm <henning@makholm.net> writes:
> >
> > The situation the clause aims at is one where a patent owner seeks to
> > gain a monopoly on the original author's work by preventing everybody
> > else - including the original author himself - from using it.
> 
> Your use of the term "original author" is misapplied.  Either the
> copyright owner is not the original author, because the patent
> predates his work, or he is the original author and can win the suit
> easily.

His use of the term is correct.  The software was written by the
"original author."  Software can infringe a patent that was issued
before, after or concurrently with the software being published.  The
odds are that, even for a patent with a filing date after the software
was first published, the defendant in a patent suit would have trouble
winning on that basis.  Among other reasons, many countries have a
"grace period" that allows publication of an invention before filing a
patent for it; the USA allows such publication by third parties.

> > I don't think "justice", impartial or not, has anything to do with
> > that. My intuition is that it is fair for free software to say, "if
> > you want to have a monopoly on implementations of your patented
> > gadget, you have to write the code yourself".
> 
> Similarly, I think it's fair to say that Free Software licenses
> should not attempt to circumvent the courts, and that penalties for
> bringing law cases belong only in negotiated contracts.

Can you relate this limitation on licenses to the DFSG?

Michael Poole