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Re: Open Software License v2.1



Nathanael Nerode wrote:
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.

Would a counterclaim regarding patent C be a compulsory counterclaim in that case? That is, if VD does not bring patent C into the lawsuit, would VD be barred from bringing a future suit against MSC regarding patent C?

If so, then VD has two options: give up their copyright license for X, or essentially grant MSC a free license for patent C. (Of course, Joe could forgive the copyright license violation and allow VD to continue working with X)


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.)


Here, If a counterclaim regarding patent C is compulsory, VD can not expect the copyright holder (Joe in the above example, now MSC) to forgive the copyright license violation, so that violation means no more X (ever). Or VD could leave patent C out of the suit, which essentially grants MSC a free license to C.

--Joe



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