Re: Open Software License v2.1
Glenn Maynard wrote:
> Ick. A, B, C, X, VD, MSC, π. I find these hypotheticals to be a lot
> easier to parse and process if I give these people names and use actual
> projects to put things in perspective with one another ...
>
> On Tue, Sep 21, 2004 at 03:08:04PM -0400, Nathanael Nerode wrote:
>> (Essentially, by buying the copyright, they would have gotten themselves
>> a special license to avoid the patent-termination clause, and that's
>> all.)
>
> However, the question is if the patent grant is intrinsic to these patent
> defense clauses being free.
>
> Without a patent license grant, if John writes GIFEnc, and holds a GIF
> patent, he can distribute GIFEnc under a patent-defense license, and then
> sue users of
> it for violating his GIF patent. Those users can't as easily countersue
> by claiming that GIFEnc also violates their own GIF patent, because
> they'll lose their license to it.
>
> With the patent grant, John can't sue for that patent violation--or if he
> does, users have a trivial defense (he granted them a license).
>
> Is the first case free? If you think so, the copyright-transfer case is
> irrelevant.
Hmm. No, the first case is non-free.
However, if he distributed under a non-patent-defense license, it would
*still* be non-free. So I'm not clear on how the so-called patent-defence
clause makes any difference here.
> I'm inclined to say it's not. I'll agree not to sue you for patent
> violation for a license to this software, but only if it's mutual--don't
> give me a copyright license and then turn around and sue me for patent
> violation. I'm not going to give up my ability to countersue unless you
> agree to make it unnecessary.
>
> Now, I can still be sued by GIFCorp for patent violation. They'll lose
> their license to GIFEnc, but they may not care. In that case, I won't be
> able to sue them for violations due to their use of GIFEnc--they don't
> even use GIFEnc.
>
> So the case in question is: GIFCorp has bought GIFEnc and uses it heavily,
> and sues me for violating their own GIF patents (which the origial patent
> grant didn't include). They do use GIFEnc, but I can't countersue for
> their violations in that use--I'll lose my license. We're back to the
> above "without a patent license grant" case.
Right.... but if the patent-defence clause is absent, then either:
(1) GIFEnc is still free, because GIFCorp's patents will be defeated
(In which case what's the need for the countersuit?)
Or (2) GIFEnc isn't free
So what difference does the patent-defence clause make?
You are convincing me that patent license grants are a necessary component
of *all* licenses, not just patent-defence licenses. :-)
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