Re: Open Software License v2.1

[Michael Poole <mdpoole@troilus.org>]

MJ Ray writes:

> On 2004-09-19 14:41:05 +0100 Michael Poole <mdpoole@troilus.org> wrote:
> 
> > Note that there are two kinds of patent clauses floating around:
> > One says that if you sue the software's authors for *any* patent
> > infringement, your license is terminated.
> > The other says that if you sue claiming that the software infringes
> > your patent, your license is terminated.
> 
> A third sort says that if you sue or defend yourself by claiming that
> the software infringes your patent, your license is terminated.

I included that in my second category because whether patent
infringement is a claim or counterclaim, the effect on free software
is the same.

> The fourth, fifth and sixth sorts are the same, but terminate your
> copyright licence instead/as well as your patent licence.

I am not sure why we should draw a distinction between patent and
copyright licenses.  To the extent that some item of software is under
patent or copyright, users need license (or lack of enforcement) from
the rights holder(s) to distribute and/or use that software.

> I've yet to see an argument for anything other than the second or
> third cases which even gets near convincing me. The Open Software
> License v2.1 is not an example of the second or third case. Does it
> look like the sixth?

Yes: both patent and copy rights granted to you under OSLv2.1
terminate when you claim in a lawsuit that the software infringes a
patent.

One argument -- not the only one -- for why the fifth and six cases
are reasonable follows.

Imagine a program called Xunil that is licensed under the GPL.
Imagine that someone claims to hold patent rights over Xunil, and
attempts to charge users for a license to use their "Intellectual
Property In Xunil."  This raises three questions:

1) Do they retain the right under the GPL to copy, modify, distribute,
etc Xunil?

2) Under the GPL, does it matter whether they assert their patent
claims in a lawsuit?

3) Based on the previous answers, how does the GPL's termination
condition compare to your second, third, fifth or sixth varieties of
termination due to patent lawsuit?  (Equivalent, broader, narrower,
entirely disjoint, or partially disjoint?  Is it useful to classify
the cases that terminate only one or the other?)

Michael Poole