Patent clauses in licenses
Recently, we've begun seeing more licenses that are designed to
discourage patent lawsuits. They usually involve something along the
lines of "If you engage in patent action against the licensor, bad
things will happen".
"Patent action against the licensor" usually takes one of two forms. The
first is "Any patent action against the licensor", with the second being
"Any patent action against the licensor connected to the licensed work".
An example of the first is the RPSL[1]. Any patent action against the
licensor terminates your copyright license, even if you're alleging
infringement in an entirely separate area. The MPL[2] is an example of
the second. Here, patent action only results in termination of the
copyright license if the action alleges infringement in the copyrighted
work.
"Bad things" can also take one of two forms. The first is "Termination
of copyright license", which is the result of the two examples listed
above. The second is "Termination of patent license", which also appears
in the MPL[3]. In the first case, you lose all rights to do anything
with the software. In the second case, you only lose the right to make
use of the patents - you are still permitted to use the software, though
doing so may result in you being open to patent infringement suits
yourself.
The motive behind these licenses is, in many cases, simply to discourage
software patent lawsuits. This is probably an entirely reasonable aim.
However, it's a situation that didn't really exist at the point where
the DFSG were written. As a result, it's difficult to gain any real idea
as to whether Debian should consider these free or not. Of course, it's
also possible to come to the conclusion that certain classes of these
clauses are free and some aren't - there's an obvious degree of
difference between termination of copyright license and termination of
patent license, and also between termination on all patent suits or
termination on relevant patent suits.
As a non-strictly related point, both the FSF and the OSI appear to
consider clauses of this nature free. The lack of any real consensus
on this topic within Debian makes it difficult to negotiate with license
authors. If we disagree with the FSF, we probably need to make it clear
precisely why we hold this opinion, and then set about trying to change
other people's minds.
[1] "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:
...
(c) automatically without notice from Licensor if You, at any time
during the term of this License, commence an action for patent
infringement against Licensor (including by cross-claim or counter claim
in a lawsuit)"
[2] "8.2. If You initiate litigation by asserting a patent infringement
claim (excluding declatory judgment actions) against Initial Developer
or a Contributor (the Initial Developer or Contributor against whom You
file such action is referred to as "Participant") alleging that:
(a) such Participant's Contributor Version directly or indirectly
infringes any patent, then any and all rights granted by such
Participant to You under Sections 2.1 and/or 2.2 of this License shall,
upon 60 days notice from Participant terminate prospectively, unless if
within 60 days after receipt of notice You either: (i) agree in writing
to pay Participant a mutually agreeable reasonable royalty for Your past
and future use of Modifications made by such Participant, or (ii)
withdraw Your litigation claim with respect to the Contributor Version
against such Participant. If within 60 days of notice, a reasonable
royalty and payment arrangement are not mutually agreed upon in writing
by the parties or the litigation claim is not withdrawn, the rights
granted by Participant to You under Sections 2.1 and/or 2.2
automatically terminate at the expiration of the 60 day notice period
specified above."
Where 2.1 and 2.2 grant you the right to use, modify and distribute.
[3] "8.2. If You initiate litigation by asserting a patent infringement
claim (excluding declatory judgment actions) against Initial Developer
or a Contributor (the Initial Developer or Contributor against whom You
file such action is referred to as "Participant") alleging that:
(b) any software, hardware, or device, other than such Participant's
Contributor Version, directly or indirectly infringes any patent, then
any rights granted to You by such Participant under Sections 2.1(b) and
2.2(b) are revoked effective as of the date You first made, used, sold,
distributed, or had made, Modifications made by that Participant."
2.1(b) and 2.2(b) grant you patent licenses.
--
Matthew Garrett | mjg59@srcf.ucam.org
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