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Re: Question about Facebook's Osquery: Additional Grant of Patent Rights

On 30/10/14 03:18, Riley Baird wrote:
> This is the part which worries me:
> no license is granted under Facebook’s rights in any patent claims that
> are infringed by (i) modifications to the Software made by you or a
> third party, or (ii) the Software in combination with any software or
> other technology provided by you or a third party.

Suppose Facebook has two patents - one for a method for frobnicating
widgets, and one for a method for reticulating splines, say - and
osquery frobnicates widgets in a way that would be covered by that
patent, but does not currently reticulate splines. Then this patent
grant lets osquery users frobnicate widgets, and the goal of this clause
seems to be that if I modify osquery to add unrelated
spline-reticulation functionality, Facebook can still demand that I
license their spline-reticulation patent separately. I am deliberately
using hypothetical patent examples because I don't know, or want to
know[1], what patents Facebook holds.

The closest copyright equivalent would be that they release one work
under a DFSG license, but keep another work proprietary. Obviously, we'd
prefer that they license all their patents permissively, and all their
copyright works under DFSG licenses; but if they're not going to do
that, which in practice they probably won't, a limited license is better
than no license.

As long as software patents exist, certain specific modifications to
software are never going to be possible to do without infringing a
patent, regardless of the licensing status of the software you started
from. We don't stop considering Linux to be DFSG-licensed just because,
for instance, one example of a modification that could be made to Linux
would be to add exFAT support using the methods described in certain
Microsoft patents, and that would (probably[2]) infringe those patents.
If we *did* let that prevent us from distributing or modifying software,
then there would be no software that we would consider to be DFSG, and
we wouldn't be able to produce a software distribution at all. The fact
that we continue to develop Debian rather than just giving up suggests
that that is not how we interpret the DFSG.

More generally, because independent reinvention without knowledge of the
patent can infringe patents, and patent searches for arbitrary free
software are neither feasible nor advisable[1], it is always the case
that any modification you make to any piece of software might be
infringing some previously unknown patent. There's nothing we can do
about that, other than trying to get the relevant laws changed.


[1] https://www.debian.org/reports/patent-faq, under the heading "Are
you suggesting that it is better for developers and contributors not to
read patents?"
[2] if we assume those patents are valid, which I am neither qualified
to assess, nor interested in assessing[1]

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