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Re: Open Software License v2.1

Josh Triplett <josh.trip@verizon.net> writes:

> MJ Ray wrote:
>> On 2004-09-13 03:39:39 +0100 Glenn Maynard <glenn@zewt.org> wrote:
>>> "This License shall terminate automatically and You may no longer
>>> exercise any of the rights granted to You by this License as of the date
>>> You commence an action, including a cross-claim or counterclaim, against
>>> Licensor or any licensee alleging that the Original Work infringes a
>>> patent."
>>> The new clause may still not satisfy everyone, but it's much better: it
>>> no longer forbids all patent action against Licensor; in fact, it no
>>> longer makes a special case of the Licensor at all.
>> It is a great step forwards: it no longer contaminates other software.
>> Sadly, as written, it still seems to terminate a copyright licence as a
>> consequence of patent-based action, even in self-defence. Until I'm
>> shown harder facts about copyright misuse and trademark misuse in each
>> law this licence is used in, I'm still uncomfortable with this idea.
> Does that really matter, if the condition for termination is acceptable?
>  If the patent license is terminated, the only reason to care whether
> the copyright license terminates as well is if you intend to ignore the
> lack of a patent license.  (Granted, Debian tends to do that in many
> cases. :) )
> Furthermore, if you *sue claiming that the work infringes your patent*,
> I see absolutely no reason why you should have any rights to the work,
> since you are trying to eliminate the rights of others to the work.  I
> can understand the objection to terminating the license over unrelated
> lawsuits, but not the objection to termination when you actually sue
> over the software in question.  The alternative would be that *no one
> except you* would have rights to the software, which means you have now
> essentially made it your own proprietary software.

No, you did that when you invented it and filed for a patent.  It's
*already* your own proprietary software, and you're going to the
courts to get that enforced.

Consider a copyright-only case: Alice and Bob each release some
software under a copyleft, with a clause mentioning that any lawsuit
claiming copyright infringement on the work or any derivative forfeits
all right to the original work and any derivative.  Alice and Bob each
use each other's software extensively, though they don't actually like
each other much at all.

Now Charlie comes along and derives a new work from Alice's and Bob's
software.  He violates the copyleft.  They'd each like to sue him for
copyright infringement, but if either one sues to defend his property
rights, he loses his rights to the other's software.  Is this free?

I don't think it is, though I'm not so sure of myself to think that
reasonable people can't disagree.

But the patent case seems very similar: A and B each develop some
software and distribute it under a copyleft with an attached patent
license with a termination clause for any suit against the licensor or
any licensee claiming patent infringement in the associated code.
They each use the other's software and patented techniques.

C then distributes an illicit derived work, in such a way that he does
not violate the copyright license but does violate the patent
license.  Neither A nor B can sue him without losing their rights to
the other's software.  So if the copyright version is non-free, this
is non-free, right?


Brian Sniffen                                       bts@alum.mit.edu

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