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Re: [Richard Stallman <rms@gnu.org>] Re: Debian & BSD concerns

On 16 Mar 1999, John Hasler wrote:

> Bruce Sass writes:
> > As a worst case scenario, a patent could be like a `revoke-on-a-whim'
> > clause in a license.
> But a patent isn't "in" a copyright license.  

Huh, what does a copyright have to do with this discussion. 

> Patent and copyright are
> orthogonal.  Are you assuming that the patent owner and the author of a
> work that implements that patent must be one and the same?  Not true.

No I'm not.  You are the one that keeps mentioning copyrights.
Copyrights, patents and licenses are all distinct. 

A copyright holder has the right to determine who gets to redistribute
either the original work or anything that qualifies as a derived work. 

A patent holder has the right to determine who gets to use their
invention and to what use they can put it. 

Both use licenses to define the terms of the agreements. 

Hmmm, you seem to see "license" and automatically think "copyright". 

> > Simply because it is not at all clear what would happen if a party and a
> > patent holder stood in front of a judge, and the party was trying to
> > argue that the patent holder can not set the terms of the license.
> What isn't clear?  The owner of the patent gets to set the terms under
> which he will license it.  That is what it means to have a patent.  

And if the holder of the patent decides to change the terms of the
license (after all that is the patent holders legal right)? 

> He has
> no say in the terms of the copyright license of a work which implements his
> patent unless he is also the author of that work, of course.

Why do you keep bringing up copyrights. 

> > To take it a step further, since the outcome of the above conflict would
> > not necessarily be the same in all jurisdictions,...
> What conflict?

The conflict that could arise if a programmer used a patent algorithm
that appeared to be "free", then the patent holder decided to change the
license to something that was "non-free" and told the programmer to
either stop using the patented algorithm or accept the new license.  If
the programmer refused, it could end up in court with the patent holder
saying, `I revoked the old license and replaced it with a new one, but
this programmer refuses to acknowledge my right to determine how my
invention can be used'.  The programmer would probably say, `but I have
a license that lets me use the algorithm'. 

So, it would be up to the judge to determine if the rights granted by
the patent are more important than the rights granted by a license
issued under the authority of the patent.

> > ...it could be argued that the license may not always be the same for
> > everyone.
> I don't follow you.  

Since the disposition of the above mentioned legal conflict would depend
on both the country the patent rights are being challenged in and how
the judge views the two arguments, no one is able to determine
beforehand the most plausible outcome of such a case unless they know
patent law and precidents in all possible jurisdictions. 

In one jurisdiction it may be plausible that the patent holder gives up
all rights as a patent holder by (lets say) GPLing the license.  In
another jurisdiction the most likely outcome may be that the patent
holder's rights take precedence over the licensee's rights, irregardless
of any previous license, simply because it is the patent that gives the
patent holder the right to apply whatever license they want to.

Does that help?

> The licenses on any piece of IP are only the same for
> everyone if the owner has chosen to make them so.

> > Is a patent a one way ticket into non-free?
> Only if the patent owner is also the copyright owner, and refuses to freely
> license the patent.  See the NPL for an example of how to deal with this.

Copyright has nothing to do with this discussion.

Just for the sake of argument...

Consider the scenario where I come up with a really neat algorithm and
do manage to get it patented.  I then release a program that uses that
algorithm, and in the copyright notice I include a non-free license, I
also include a license that allows anyone to make use of the patent
algorithm.  Anyone could then write a program that uses the patent
algorithm, as long as they didn't redistribute my copyrighted program or
base their program on it in such a way that it would be considered a
derived work of my program.  Everthing is fine and dandy, right.  Now,
what happens when I wake up some morning and decide to change the
license that pertains to the use of the algorithm, `give me $10,000 or
stop using my invention'...  If it was just a copyrighted work that you
were using you could tell me to `piss off, you have granted me license
to use your work and you never said for what period of time I could use
it for, tough luck buddy'.  I would expect the judge to agree with you
because you are not violating any of my rights (I have exercised them
already and nothing is preventing me from continuing to exercise them by
only granting non-free license in the future); I would probably be seen
as trying to back out of a contract.  On the other hand, if you tried to
make the same argument with respect to a patent algorithm of mine (and
were successful), you would be violating my right to determine how my
invention can be used - which includes the right to change the terms of
the contract that allows you to use my idea (the license) as long as
nothing in the contract prevents it.

The only way I can see a patent license being "free" is if it explicitly
states that the invention could be used perpetually by the license
holder in a "free" manner... and if someone does that, what was their
purpose in getting the patent in the first place.  Copyrights are
automatic, a patent must be applied for and entails considerable
expense, why would someone go to all the trouble then give it away. 

Like I said at the start... 
Since a patent is used to grant control of an invention to some party,
it should probably be viewed with suspicion - the whole free software
movement seems to be predicated on giving up control.

It would be great to be shown just how wrong I am,
because if I am correct with my reasoning it means that packages
containing patent algorithms should be considered non-free,
unless there is an explicit statement saying that the invention is free

- Bruce

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