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Re: Open Software License v2.1

Nathanael Nerode <neroden@twcny.rr.com> writes:

> Brian Thomas Sniffen wrote:
>> Josh Triplett <josh.trip@verizon.net> writes:
> <snip>
>>> Furthermore, if you *sue claiming that the work infringes your patent*,
>>> I see absolutely no reason why you should have any rights to the work,
>>> since you are trying to eliminate the rights of others to the work.  I
>>> can understand the objection to terminating the license over unrelated
>>> lawsuits, but not the objection to termination when you actually sue
>>> over the software in question.  The alternative would be that *no one
>>> except you* would have rights to the software, which means you have now
>>> essentially made it your own proprietary software.
>> No, you did that when you invented it
> Stop right there.  You didn't invent the software I wrote, regardless of
> what the overloaded US Patent Office might think.

Sure I did.  Well, if you're writing some software to do
Diffie-Hellman key exchange, that Diffie and Hellman most certainly
*did* invent that, and have a (now-expired) patent on it.  If you're
using the RSA cryptosystem to provide secrecy and authentication for
data, then R, S, and A really did invent it, and you're just following
in their footsteps.  You didn't come up with the idea of using
discrete log as a trapdoor function, or the idea of using trapdoor
functions for key exchange.  You're just writing in accord with the
algorithm they published.

Rivest et al. could have kept their algorithm secret, and only sold
sealed boxes for performing in-line encryption.  Instead, they
accepted a bargain with society in which they published their results,
allowing others to build on them, and received a monopoly on those
results for a period of time.

If you reject that bargain for software, that's fine -- but it means
you should reject both halves, and isolate yourself from hearing about
patented techniques like LZW compression, public key cryptosystems,
the tab key, etc. until after their patents have expired.

>> and filed for a patent.
> Some companies file "defensively" on the "everyone else has bogus garbage
> patents, we need some too" principle.

Yup.  There are lots of junk patents.  They outnumber the good ones,
as far as I can tell.  The right way to fix that doesn't involve
diluting our concept of freedom.  The right way to fix that is to fix
the patent-granting system.

If we proceed in diluting our concept of freedom -- if we say that
it's OK to be non-free if it's for a Really Good Social Cause, to
prevent and destroy these evil patents which keep software from
getting written -- then at some point Microsoft and friends will
convince part of the free software community to license software in
ways preventing copylefts, because these evil copylefts keep software
from getting written.  After all, *you* didn't invent my
modifications, and shouldn't have any right to control what I do with

>> It's  
>> *already* your own proprietary software, and you're going to the
>> courts to get that enforced.
> But what about my copyright?  I wrote the software.  I am happy to license
> it freely.  I am *not* happy to make it into your proprietary software.  If
> your patent is really valid, write your own software.

That's fine, but if you haven't *really* freely licensed it to me
unless I refrain from suing you, then it's not a free license.

>> 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?
> Actually, this is *not* analagous to the case at hand.
> The clause we are discussing only applies if you allege that the *Original
> Work* consitutes patent infringment.
> Delete the "or any derivative" phrase from your example, and you see that
> neither one loses the rights to the other's software. (On the other hand,
> if Bob claims that Alice's software contains work stolen from Bob, then Bob
> *does* lose the right to use Alice's software.  And Charlie's.  Is that
> free?)

I believe the clause we're discussing involves a suit against the
licensor or any licensee, and so covers licensees who are using the
original work as a component of a larger work.  Think bigger.  And in
that light, consider again the following:

>> I don't think it is, though I'm not so sure of myself to think that
>> reasonable people can't disagree.
>> But the patent case seems very similar: A and B each develop some
>> software and distribute it under a copyleft with an attached patent
>> license with a termination clause for any suit against the licensor or
>> any licensee claiming patent infringement in the associated code.
>> They each use the other's software and patented techniques.
>> C then distributes an illicit derived work, in such a way that he does
>> not violate the copyright license but does violate the patent
>> license.  Neither A nor B can sue him without losing their rights to
>> the other's software.  So if the copyright version is non-free, this
>> is non-free, right?
> But that's not the case we're looking at....
> -- 
> This space intentionally left blank.

Brian Sniffen                                       bts@alum.mit.edu

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