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Re: DFSG Freeness of Patent Reciprocity Clauses

Brian T. Sniffen wrote:
Nathanael Nerode wrote:

Brian Sniffen wrote:

Would the following be considered Free by anybody here?

     If You institute litigation against any entity (including a
     cross-claim or counterclaim in a lawsuit) alleging that the Work
     or a Contribution incorporated within the Work constitutes direct
     or contributory copyright infringement, then any licenses
     granted to You under this License for that Work shall terminate as
     of the date such litigation is filed.

Yep, I think it's Free, and here's why.

If you allege that the Work contains copyright violations, you are implicitly alleging that the license for the Work does not grant a valid license.

Not at all -- it grants a perfectly valid license to some of the work, but part of the work is mine. As a result, I'm the *only* person who can legally copy the work. For example, consider that I'm RBN, a large Utah-based software company (formerly Volcano, formerly RBN).

If I point out that the Linux kernel contains some of my copyrighted code, then all the licenses on others' code (BSD, GPL, etc) certainly permit me to copy that code (providing I comply with their other restrictions, of course -- so I can copy the code in a Free way).

Yes.  But I think that the restriction doesn't actually stop that!

Case 1. (The likely case.) The other people's code reasonably qualifies as *separate works*, and are actually covered by individual licenses. In this case, the revocation of the license to use the combined work (containing your code) does not limit your ability to use the separate works in any way.

Case 2. The other people's code is totally inseparable from your code and does not qualify as a separate work. In this case, the license to the other people's code gives nothing to anyone but you! This is almost certainly a total subversion of the intention of the other people; if you are allowed to continue distributing their code (when you have prohibited anyone else from doing so), you have effectively taken code intended to be Free and made it proprietary to you; you've abused the law to steal other people's work.

Accordingly, I think this sort of restriction is really no more restrictive than the GPL's requirement that you must be able to satisfy *both* the GPL *and* any other legal requirements, or you can't distribute at all.

If you can convince me that I'm wrong about what the restriction would prohibit, then I'll agree with you. :-)

Others cannot do so without a license grant from me, so I sue to stop them.

Accordingly, you shouldn't be using the Work under that license *anyway*
(you believe that the license is invalid!). Explicitly revoking the licenses revokes only those rights you have claimed that you don't have.

No, it punishes me for attempting to enforce my legal rights. I never forfeited my claim to those rights, certainly not by suing to enforce them!
Read my argument again; you seem to have missed the point.

Explicitly revoking the licenses imposes a non-Free restriction on what I can do.

The license revocation only applies to the license on a Work containing your copyrighted code. (And it *must* be that narrow in order to be Free, in my opinion. If you convince me that the clause as you framed it is *not* that narrow, you will have convinced me.)

You may take works not containing your copyrighted code (perhaps a very simple process), and use them under their licenses. This may in fact allow you to recreate something approximating the combined Work. Or it may not.

How about this clause:
"If you contend in a court of law that this License does not grant anyone a valid license to copy and distribute this Work, then this License shall not grant *you* a license to copy and distribute this Work."

Would you say that that was a non-Free restriction? I believe that the narrow reciprocity clauses are a subset of that. (If they *aren't*, convince me that they aren't, and I'll agree with you.)

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