Re: Please Review: Official IBM Public License

[kragen@pobox.com (Kragen Sitaker)]

I'm starting to get to the point where I am no longer interested in
working with, or even thinking about, code that doesn't have a
well-known license.  For example, the IBM Data Explorer license appears
to leave the possibility open that people distributing modified
versions will get sued in the following case:

IBM releases OpenDX.
Party A adds features they own patents on to OpenDX, releasing OpenDX'.
Party B adds more features to OpenDX', doesn't touch party A's code or
add more code that infringes Party A's patents, and releases OpenDX''.

This same problem seems to be there in the license they're thinking
about using on Jikes and VMailer:
http://www.debian.org/Lists-Archives/debian-legal-9906/msg00213.html

Basically, it looks like section 2(b)'s sentence "The patent license
shall not apply to any other combinations which include the
Contribution." means that Party A's patent is licensed for OpenDX' but
not OpenDX''.  (Except that in the actual OpenDX license, it's worded
differently; the wording above is from the license posted to
debian-legal.  The OpenDX license says, "The patent license shall not
apply to the combination of the Contribution with any other software
except that it shall apply to the combination of the Contribution and
the Program where, at the time the Contribution is added, the addition
of the Contribution causes the combination of the Contribution and the
Program to be covered by the Licensed Patents."  Ref:
http://www.opendx.org/dlSrc.html.)

Am I missing something here?  I'm not a lawyer.

Since the draft IPL treats IBM as just another contributor, Party A
above could be IBM.

It was my understanding that IBM did this deliberately, to avoid the
following scenario:

IBM licenses patent X to company Y for $n per user of company Y's software,
	Z.
IBM releases VMailer, which implements a technique covered by patent X.
Company Y makes a modified version of VMailer by deleting all but the file that
	implements the patented technique, then adding all of the source 
	code for Z except for the part of Z that implements the patented 
	technique.
Company Y pays no further patent royalties to IBM.

This is possible under the MPL; the IPL language sounds like it prevents it.

So simply because the copyright on a piece of software is licensed
under the IPL does not mean that the patents in it are licensed in
DFSG-compliant ways; it seems to me that the patents could be licensed
(by IBM) in ways that violate section 3 of the DFSG.  Worse, IBM could
obtain the patent five or six years after people begin using the
software; it seems to me that this puts people in the same danger of
termination that the old Jikes license did, although to a lesser degree.

-- 
<kragen@pobox.com>       Kragen Sitaker     <http://www.pobox.com/~kragen/>
According to my medieval text in the seventh century a finalizer raised a
dead object named Gorth who infected every computer in Cappidocia ending
Roman rule in the region.  -- Charles Fiterman on gclist@iecc.com