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

On 16 Mar 1999, John Hasler wrote:
> Bruce Sass writes:
> > Hmmm, you seem to see "license" and automatically think "copyright".
> No.  I just couldn't see any point unless I assumed you were discussing the
> interaction of a patent and the copyright on a work that implements it.


> > The conflict that could arise if a programmer used a patent algorithm
> > that appeared to be "free",...
> You mean that the patent owner granted the programmer a license, and the
> programmer interpreted it as "free"?

Much the same effect, but I was thinking more along the lines of a
license overstepping its bounds and granting rights that could not be
legally upheld.  That GPL clause 7 mentioned by Henning Malkhom
addresses the issue.

> > ...then the patent holder decided to change the license to something that
> > was "non-free"...
> This makes no sense.  A patent owner cannot unilaterally and retroactively
> alter a license he has granted.

Patent owners can do anything, how likely they are to get away with it
is what I am wondering, off to the side is the issue of what happens in
the interim (while it is in court).

> > 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.
<...> The right granted to the patent is,
> effectively, the right to grant licenses.

> > 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'...
> That will depend on whether or not the thing you included in your copyright
> license is considered the grant of a license to the public to use the
> patent.  If it is and contains no revocation clause you won't get your
> money.

Ok, this covers the users of the patent holder's non-free copyright
licensed program, and maybe ("depending on whether...") users of the
programmer's stuff that uses the patented algorithm.

> > 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...
> No, I would merely be asserting that you had granted me a license.
> > ...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.
> There is no such right.

I would think that it was part of having the sole right to determine the
use of the invention... but I was really trying to go beyond the surface
and get an idea of what may happen if/when it does get to court, and
what the consequences could be for users, programmers and distributors.
You could say I'm wondering if there is anything inherent in a patent
holders rights that puts a limit on just how free a patent algorithm can
be with respect to licensing.

- Bruce

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