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Re: Patent clauses in licenses

MJ Ray writes:

> On 2004-09-21 10:21:58 +0100 Glenn Maynard <glenn@zewt.org> wrote:
> > On Mon, Sep 20, 2004 at 03:02:49PM +0100, MJ Ray wrote:
> >> It is bad patent law which favours patent owners. It is fine to use
> >> copyright licences to "correct" copyright law, but using copyright
> >> licences to "correct" non-copyright law - be it patent law, gun
> >> control law or nuclear technology laws - is not.
> > Why?  What freedoms does this protect?
> Respectively: the freedom to prosecute with and defend yourself
> against patent accusations; the freedom to bear arms; and the freedom
> to use nuclear technology. Of course, not all jurisdictions allow
> those freedoms, but that's determined by laws, not by copyright
> licences.

This argument over-simplifies the case: No putatively free license has
included a waiver of patent claims, just termination of patent and/or
copyright license if you assert those claims.  The interesting case
(that some argue is free) is when your license terminates when you
claim the software infringes your patent.  This is a self-protection
measure for the software; while someone might try to construct similar
anti-gun or anti-nuclear license terms, they would have to be so
narrow as to be both silly and pointless.

> > Why should copyright not be used
> > to protect free software from patent abuse, just as it's used to
> > protect
> > against "software hoarding"?
> Mainly because most possible uses have unpleasant side-effects in some
> cases. "Software hoarding" is a description of a copyright-based
> problem, if you are referring to rms's "Why Software Should Be
> Free". It seems just to use copyright to solve it. Why should we use
> copyright against patent law, instead of encouraging patent-afflicted
> developers to find ways to use patenting against itself?

Is there a way to use patenting against itself?  For all the times I
have seen someone suggest that, I have yet to see a good way to do
that.  The biggest problem is that you can infringe a patent without
knowing it, and trying to not infringe patents is impractical.  (Most
people cannot afford to hire a patent attorney to review their use of
free software against extant patents.  Reviewing patents yourself
opens the possibility of willful infringement if you are wrong about
what is covered.  In both cases, valid patents may be pending but not
public when you do your review.)

Setting aside the question of practicality, I know of three ways to
reduce the chance that I will successfully be sued for infringing
someone's patent by writing or using free software:
(A) establish prior art to refute possible patents;
(B) hold for myself broad patents to use defensively; or
(C) change the law so fewer issued patents cover software.

(A) is impractical because of the number of ideas that are awarded
patents, and the relatively small differences that suffice to make
them "non-obvoius."  The one-year US grace period on prior art also
makes this hard.

(B) is impractical because of the cost.  It is undesirable because it
encourages large numbers of broad patents that may not even be
practiced by the inventor.

(C) may be practical, and people are working to do that.  If they
succeed, most of the license termination clauses will have little or
no legal effect.

> Similarly, why should copyright not be used to protect free software
> use from gun abuse and nuclear technology abuse?

No one has tried.  We have so far considered terms of software that
people want to include in Debian (including how to fix non-free
licenses), so I do not see good reason to debate what would make such
clauses free.

Michael Poole

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