Re: Open Software License v2.1

[Nathanael Nerode <neroden@twcny.rr.com>]

Glenn Maynard wrote:
> Now, there's a practical issue: the copyright holder may change, so
> the copyright holder isn't the original licensor--if I buy the copyright
> for the work, the existing licensees aren't going to suddenly get a
> license to *my* patents, as well.  (I don't presently agree with the
> arguments that these clauses are fundamentally non-free in principle,
> but I'm tending to think that this practical issue--which I've mentioned
> before[1]--may be fatal.)
> 
> [1] http://lists.debian.org/debian-legal/2004/09/msg00260.html

I don't think the nature of the copyright holder really makes any
difference.  It does expose the fact that this sort of clause can be worked
around.

Consider the Malicious Software Corporation (MSC).  Consider work X by
author Joe.  MSC holds patent A covering X and patent B covering something
else.  Valiant Defender (VD) holds patent C covering X.

Normally, MSC can sue any user of X for infringing patent A.  With the
narrow patent-lawsuit-termination clause, doing so will cause MSC to lose
its copyright license for X.  If MSC doesn't copy/distribute/modify X, it
won't care.  If MSC does, then this might hurt it a bit.

Suppose MSC sues VD.  VD could try to "fight back" with patent C; this would
only work if MSC uses X, of course.  With the narrow
patent-lawsuit-termination clause, this "fighting back" would cause VD to
lose its copyright license for X as well.

I suppose some people might consider that to be bad for free software.  (I
don't.)

Now consider the case where MSC buys Joe's copyright.  What changes?
With the narrow patent-lawsuit-termination clause, MSC will retain its
ability to copy/distribute/modify X.  This will not change its ability to
sue anyone over patents A or B.  This will not change VD's ability to
"fight back" with patent C (or not), which depends on whether MSC uses X. 
This will not change whether VD's copyright license for X is terminated or
not.

(Essentially, by buying the copyright, they would have gotten themselves a
special license to avoid the patent-termination clause, and that's all.)

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