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Re: Open Software License v2.1

Glenn Maynard <glenn@zewt.org> writes:

> On Wed, Sep 15, 2004 at 12:01:15AM -0400, Brian Thomas Sniffen wrote:
>> 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?
> This isn't claiming that the works of Alice or Bob are infringing
> copyright; it's claiming that Charlie is infringing copyright.
> Neither Alice nor Bob face license termination for each other's
> work for suing Charlie over Charlie's use of those works; they'd
> only lose the license to Charlie's derivative work.
> Or at least they shouldn't, if this type of license is implemented
> properly.  

But that's where patents differ from copyright -- they have no concept
of derivative works, only of protected methods.  So if you sue
claiming that the implementation in Charlie's is bad, you're also
claiming the implementation in Alice's is bad.  This is suing "the
Licensor or any licensee" over that implementation.  The suit is
*motivated* by failure to comply with the license, but it's over
patent infringement in Alice or Bob's code.

> Take a simpler case.  Alice writes a program.  Bill contributes
> somewhat to it--enough to have a copyright claim.  John takes the
> result, and violates the license.  Bill sues John for violating
> his part of the copyright.  Does Bill lose his license to Alice's
> work?  No; he's not saying that Alice's work is in violation,
> he's saying that John is in violation (through his act of distributing
> without eg. offering source).

But you can't sue for license violation, not of a free license -- all
you can do is sue for patent infringement.  So he does, in the patent
case, have to claim infringement of his patent on that method.

> I'm a little mixed up, though: I'd expect that an action, not a work,
> violates a copyright or patent license--by copying in a way that
> isn't allowed, etc.--whereas the work itself infringes on a patent
> if there's no license at all.  I'm not sure, though, and I'm getting
> confused just thinking about it ...

I think you're right about that.  But I have to think about it a lot more.


Brian Sniffen                                       bts@alum.mit.edu

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