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Re: Taking a position on anti-patent licenses

On Mon, Jan 31, 2005 at 03:09:59AM +0000, Andrew Suffield wrote:
> On Sat, Jan 29, 2005 at 02:55:17PM -0500, Nathanael Nerode wrote:
> > I believe that most of us have come to the conclusion that self-protection 
> > clauses are free.  These are of the form:
> > "If you make a legal claim stating that use (/distribution/etc.) of this 
> > software infringes a patent, then you may not use (/distribute/etc.) this 
> > software."
> I'm not sure why you think that (I can't even think of a license with
> a clause like this in; this isn't even the extremely limited form
> present in the GPL, "you may not modify/redistribute unless you grant
> everybody everything they need under any law to do the stuff
> enumerated in this license,
> this-is-just-an-observation-not-a-restriction").

I think the RPSL[1] does that, or close to it:

> 11.1 Term and Termination. The term of this License is perpetual
> unless terminated as provided below. This License and the rights granted
> hereunder will terminate:

> (d) upon written notice from Licensor if You, at any time during the
> term of this License, commence an action for patent infringement against
> any third party alleging that the Covered Code itself (excluding combinations
> with other software or hardware) infringes any patent (including by cross-
> claim or counter claim in a lawsuit).

I'm undecided about these clauses.  One argument against them seems to
be "don't mix patents and copyrights", but I havn't seen much of a case
for that--it seems to say "don't try to protect against patents via
copyright", but copyright is all we have available.  Another is "maybe
patents are evil, but it's not the place of a free license to prevent
them from being used".  I disagree with that on its face; there are no
redeeming values to offensive patent enforcement, and I see no harm in
defending against it.  (Some people consider "software hoarding" a major
problem, and they use copyright--in the form of the GPL--to protect against
that, too.)

On the other hand, I don't think these clauses help.  The people most
projects are likely to be in danger from are not companies who care about
their license to the allegedly-patent-infringing software.

I'm not sure that it's reasonable to expect companies to give up their
ability to use patents defensively, either, which most or all of these
clauses do.

(I do think Nathanael is misstating the case a bit: despite the long
debates on this topic, I still don't have a very strong opinion myself,
and I don't think there are yet any consenses about patent defense clauses
at all.)

[1] https://helixcommunity.org/content/rpsl.txt

Glenn Maynard

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