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Re: Open Software License v2.1

Glenn Maynard wrote:
> On Sat, Sep 18, 2004 at 12:15:24PM -0700, Josh Triplett wrote:
>>the equivalent protections, using something they *do* have: the
>>copyrights on their Free Software products.  This is actually an even
>>better form of "protection", because it allows Free Software developers
>>to reject the idea of software patents by not holding any, while still
>>defending themselves from those of others.
> That may make it a more principled form of "protection", but in terms of
> effectiveness, I doubt this type of clause will be very effective for
> most projects.  I can only think of two cases where this may be highly
> effective.  One is very major projects--I suspect even Microsoft would
> hesistate before permanently losing their license to the Linux kernel.

Or Apache, for that matter, as they seem to be one of the major
proponents of such clauses.

> The other is if major pieces of code, under the license, are in widespread
> use, such that claiming that piece of code is infringing causes you to
> lose your license to that piece of code in all its copies, so that in
> order to use any program it's embedded in, you'd have to rewrite that
> section of code.


> For most projects, though, the threat of losing the license doesn't have
> very strong teeth.  I'd guess that if Fraunhofer was willing to put down
> the cash to enforce some patents against LAME, the threat of losing their
> license to it wouldn't slow them down very much.
> (That's not to say this concept is worthless--if it can be done in a free
> fashion, then let's use what levers we've got.)

Agreed.  Much like copyleft, the effectiveness becomes greater as more
projects use it.

>>I acknowledge that the only existing method
>>for large corporations to defend themselves against software patents is
>>to hold many themselves; that does not make it right to hold software
> In an environment where the only strong defense against patents is patents,
> I don't think this is fair.  Condemn the patent system and companies that
> abuse it, but saying that holding defensive patents is not "right" isn't
> reasonable when it's the only safe course of action.

To rephrase: holding software patents for use only in defense, meaning
that you intend to cross-license them to everyone who doesn't sue you,
is a reasonable response if it is within your capabilities.  On the
other hand, suing those who don't have patents to cross-license is not,
and that is something many holders of software patents do.

However, for an individual Free Software developer, who rejects the idea
of software patents, holding such patents is generally neither within
their capabilities nor in agreement with their principles.

>>I strongly disagree with that; if one holds the copyright to a work, one
>> can license it in any given manner they please, by simply allowing the
>>rights granted under copyright to only those who fulfill the
>>requirements of the license.
> We generally agree, I think, that advertising clauses ("say these magic
> words if you mention this in advertising") in a non-EULA copyright license
> are unenforcable, as is "you may not post negative reviews of this software"
> and use restrictions ("may not be used to create bombs").

Only if those are actually given as use restrictions, and not conditions
on distribution.

> Do they suddenly become enforcable if phrased as "if you don't say these
> magic words if you mention this in advertising, this license is terminated"?
> Why?

Because copyright does restrict the ability to copy and distribute, just
not the right to use (and modify for personal use, I believe).  If your
license says "If you distribute this software, then you must include
this notice in all advertisements of that software", that seems quite
enforcable, unlike "If you use this software, ...".

> (Not that unenforcable restrictions make a license non-free, of course--I
> think that, for purposes of the DFSG, they should be evaluated as if they
> were enforcable.  As many have pointed out, they're usually a hint that
> a restriction is non-free, but that's all.)

Agreed; in most cases, we should not ignore an author's wishes simply
because we are legally allowed to do so.

- Josh Triplett

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