Re: Patent clauses in licenses
On Thu, Sep 23, 2004 at 11:22:51AM +0100, MJ Ray wrote:
> I don't believe that the freedom to bear arms in urban areas is an
> important freedom to protect, but it's not one that copyright law has
> much to do with. My use of copyright law should leave it unchanged.
> This is preservation of independent things. It's not protection, just
> as it's not persecution.
I suspect there's consensus among the project that "freedom to abuse
patent law" is not a freedom worth protecting. Likewise, there's
consensus that "freedom to take your code proprietary" is not a freedom
worth protecting.
I don't think there's anything remotely like consensus about "freedom to
bear arms"; it's likely that a lot of people in Debian believe it's worth
protecting and a lot of others don't. (The lack of consensus on this
issue is due to the fact that the issue has no relation to free software,
of course; it's not a subject that free software authors have any common
ground on.)
> As you noted, there are implementation problems too. This seems
> likely, as I have been told many times by experts and real lawyers
> that patent law and copyright law are very different. Because I trust
> their words, I'm suspicious of people who try to combine them. It
> makes me uncomfortable: I've years of dealing with copyright, but much
> less experience with patents, as they hardly touch me.
I don't think the problems are a result of patent and copyright law
being different; it doesn't seem like these clauses are actually mixing
patent and copyright law at all. They might be going beyond copyright
law and into EULA territory--I'm not sure--but they don't seem to invoke
or reference patent law at all.
I'm tending to think the implementation problems do exist, though.
> Finally, there seems little need to combine them, so what's the
> incentive driving authors who do?
I think you understand the desire of free software authors to protect
their work against patents in any reasonable way possible.
It's true enough that there are few actual known cases of free software
being "shut down" through stealth patents; it's for this reason that I
probably wouldn't use these clauses in my own work (preferring simple,
permissive licenses, myself), but I can understand that not being
convincing to everyone. As far as we all can tell, patents still do
remain a major threat hanging over all of our heads.
> >People taking your work, enhancing it, and distributing binaries
> >without
> >source, is not a copyright-based problem at all, but it's still dealt
> >with
> >via copyright.
>
> It seems like a copyright-based problem to me, because that would be
> the law People would be using to restrict the work in your situation.
> In the absence of a copyright permission for it, can it be done
> legally?
If I take your work, enhance it, give out binaries and refuse to give
out source, it's not the law restricting the work; it's my withholding
of source. The GPL fixes this by means of copyright law (GPL#3), even
though the problem isn't based in copyright.
(Of course, there are related problems which are based in copyright, such
as distributing modifications under a restrictive license, but that's GPL#6.)
--
Glenn Maynard
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