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Re: Open Software License v2.1

On Wed, Sep 15, 2004 at 09:06:18AM +0100, MJ Ray wrote:
> The first is the case where you were licensed no patents to use the 
> software. Hopefully this will be the most common case, as free 
> software developers reject software patents. If only the patent 
> licence terminates, including the software in a counter-claim 
> defending some patent accusation does not remove your freedom to use 
> the software. Why should a licensor be allowed to use copyright to 
> their advantage when attacking others with patents? Of course, if your 
> counter-claim is successful, I suspect you must grant a RF patent 
> licence for the software to remain free.

So the claim here, then, is that an aggressor could obtain the copyright
to some software that employs these clauses, make offensive patent suits
on entirely unrelated grounds, and use the software they obtained as a
wall against patents related to that software being used defensively in
reaction to the offensive patent suits.  (This much doesn't seem too

The offensive patent suits must be unrelated, since related patents
owned by the licensor are granted by "Grant of Patent License".  On the
other hand, that probably wouldn't apply if the copyright changes hands;
if Apache is under this license, and someone who owns lots of web-related
patents buys Apache ...

> Of course, but I see no reason to unnecessarily harm free software 
> developers who wish to use software patents to defend software patent 
> accusations. It's not a tactic I like, but it seems valid. Further, 
> some have claimed that copyright-based enforcement of patents may be a 
> type of "misuse" so these "all terminates" licence terms are useless 
> anyway, but I'm not sure about that.

I don't think this is very interesting, because--to my understanding--
patent enforcement is extremely expensive, well beyond the reach of the
vast majority of free software authors, while patent-defense clauses aren't.

I'm not sure how effective these clauses would be, though, unless they
become very widely used.

Glenn Maynard

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